Hailed as a landmark copyright decision by some, the recent Village People decision is a big victory for the original “Y.M.C.A.” disco songwriter, Victor Willis, but its real significance for the book community is that it is the first case to consider a 1976 amendment to the Copyright Act, which allows authors to terminate copyright grants 35 years after they were made. It is also a harbinger of greater volatility for the publishing industry in 2013 and beyond.
Willis was hired by a French publisher to translate and write new lyrics for 33 songs owned by the original publisher. The works, which were registered with the U.S. Copyright Office, listed Willis as one of the coauthors. When he sent copyright termination notices to his publisher, the publisher refused to acknowledge them, invoking the “majority rule” requirement that a majority of the authors must agree to termination of a copyright grant or license.
The decision never questioned the law’s core provision, which is an author’s right to terminate post-1977 copyright grants. The central question in the case was whether coauthors who signed separate grants need to join in terminating those grants.
The court upheld Willis’s termination because the joint authors didn’t sign a single document—they signed separate grants. As such, the majority rule didn’t apply, and Willis was able to terminate his interest in the songs and seek an increase in his share of copyright royalties. In short, Willis won because of the judge’s narrow reading of the statute.
In his decision, federal judge Barry Moscowitz also noted that “the purpose of the Act, was to ‘safeguard authors against unremunerative transfers’ and address ‘the unequal bargaining position of authors, resulting in part from the impossibility of determining a work’s value until it has been exploited.’”
The real significance of the case is that it has book people talking about copyright termination, something composers and musicians have been doing for a long time.
Author-publisher contracts and other copyright grants or licenses made on or after January 1, 1978, can be terminated during a five-year period beginning 35 years after the grant was made. To exercise the 35-year right of termination, authors (or their heirs) must give written notice not less than two or more than 10 years from the intended termination date. The notice of termination that sparked the Village People lawsuit was served in 2011.
It is worth pointing out that the case may have some limited direct relevance for authors and illustrators of children’s books. Unlike adult trade publishing, it’s common for authors and illustrators to sign separate contracts. What the Village People decision says to me is that a children’s book publisher would have a hard time challenging a termination notice sent by either the author or illustrator (neither of whom, alone, constitute a majority) by claiming the book was a joint work. What is very clear: the ruling is the first of many decisions that will help define how to successfully effect (or challenge) copyright termination.
Publishing’s quadruple witching hour is 2013. The most valuable right copyright confers upon the holder is the exclusive right to print, publish, distribute, and create derivative works. Copyright termination is a game changer. It changes the economics of book publishing, which relies on backlist to pay the bills. The historical irony is that copyright created the publishing industry. The first English copyright statute gave copyrights exclusively to printers and publishers. This led to monopolies that protected these markets, which provided an incentive to invest in printing presses, visit the Frankfurt Book Fair, and eventually throw parties at BookExpo. Today, those protected markets are being challenged by the Department of Justice, in its e-book price-fixing civil suit, and Congress, which allows copyrights to return to authors.
Add to this disruptive mix new avenues available to authors to distribute their works, the uncertain outcome in the Open Road e-book rights litigation, and it’s easy to see that the ability of authors to terminate rights in certain situations in 2013 and beyond adds an unwelcome layer of volatility to book publishing. The government, Congress, courts, and writers are a quadruple threat to book publishing.
Disco sucks. If you are a book publisher, so does copyright termination.
Lloyd Jassin is an intellectual property attorney who writes on contract, copyright, and trademark issues affecting the book publishing industry.