After six years of legal battle, ex Village People’s member Victor Willis has reclaimed the rights to 33 songs that he wrote including Y.M.C.A. This was after he had signed over the rights of the songs to his publisher after he left the band in 1979. He was alerted of a provision in the U.S. Copyright Legislation, effected in 1978, which gave authors, musicians and songwriters “termination rights”. Essentially, he could terminate the transfer of rights during a five-year period beginning at the end of 35 years from the date of the execution of the transfer. If the rights transferred included the right to publish the work, then the termination right activated 35 years after the publication of his work or 40 years after he granted the rights to his publisher, whichever was earlier. This right only operates if the agreement entered into was executed on or after 1st January 1978 and if it was executed by the author. Notice to terminate must be given no less than 2 years and no more than 10 years before the intended date of termination.
Since the 1909, the US Congress has sought to protect authors and their families by allowing them to reclaim rights that were transferred. The Old Act also had a five year window to reclaim which begins at the end of 56 years from the date the copyright was originally issued. If the author missed this chance, another chance arose after 75 years if he/she satisfied three conditions: (1) copyright must have been in its renewal term as of 27 October 1998, (2) the initial 56 year period expired prior to 27 October 2007, and (3) the termination right was not previously exercised. However, judicial interpretation exhausted the purpose of the termination right in the Old Act by finding loopholes such as by having a term for advance renewals and extensions of copyright in the contract (e.g. by agreeing that upon expiration of first term of copyright, the author will execute everything necessary for the purchaser to secure renewals and extensions of copyright). As a result, the Congress in 1976 amended the Act so that nothing can extinguish the termination right of authors.
Nonetheless, there are scholarly doubts as to whether the New Act will serve its purpose of allowing authors and their successors to recapture the assigned rights. Doubts were raised because the provision of the New Act and the Old Act contained identical wordings which stated “termination of the grant may be effected notwithstanding any agreement to the contrary…” While the New Act expressly blocks out using advance renewals as a way around the termination right, there are still possible loopholes. Two prominent cases, Milne and Steinbeck, rejected attempts by the authors’ successors to terminate pre-1978 assignments because the copyright owner re-negotiated an existing grant (in Milne, the author’s son did not terminate and instead signed an agreement in 1983 to re-grant the rights to the assignee; in Steinbeck, the author’s widow signed a new agreement in 1994 which superseded the 1938 Agreement). In both cases, the Court said that the threat of statutory termination gave the heirs greater bargaining powers which they used to renegotiate and enter into more favourable grants, and that this was consistent with the purpose of the provision. But the question one needs to ask is whether the same interpretation will be given to the New Act and exhaust its purpose.
With the Victor Willis case, authors can be reassured that their termination rights will be enforced. However, there is one major difference between those cases and Victor Willis’s and that is that there was no renegotiation or new agreement. Can they still terminate 35 years from the date of the first agreement or do they do it 35 years from the date of the second agreement? Can they even terminate if they renegotiated?
Despite the uncertainty and difference, Victor Willis is the first of his era to publicly exercise his termination rights and this may set a floodgate for other artists of his era to reclaim the rights they signed away too. While this may seem to be good news for the artists, it is not for producers, record companies, and others who bought the rights and is unable to protect themselves. Regardless of how much money was paid or what the contract says, the termination right cannot be signed away. While this can protect young authors who do not really know what they are signing away or the implications of it, it also allows those that do understand to just change their mind. Is this really fair on the purchasers or even those that are currently using the work, such as the current Village People who Victor Willis is considering banning from performing his songs? Conversely, if there was a loophole, is it fair for producers to exploit that to the disadvantage of ordinary people who do not know of the provision?
To present, there is no similar law in Australia that provides this protection to the authors. Should such law be created? After all, this law may encourage innovation but it may also create reluctance by purchasers/assignees to pay for the rights. So what is the balance and has the US actually found it? The answers to these questions will remain unanswered and debated for a long time and we, as spectators, can only sit back and enjoy the ride.