Victor Willis, lead singer and the “policeman” in the 1970s disco group, The Village People, has won back his portion of the copyrights to 33 of the songs that he co-wrote for the group, including the omnipresent YMCA. As a co-writer of these songs (there is currently some debate as to whether he had one or two other co-writers), Mr. Willis, by virtue of having written the musical compositions, held copyrights on these musical compositions (i.e., the songs themselves, not the recordings of the songs whose copyrights always have been owned by the record company). He then entered into a publishing agreement with respect to his song catalog. Like other standard music publishing agreements, under his agreement he assigned his copyrights to the music publisher, in return for the payment of royalties generated by the publisher’s commercial exploitation of the songs.
The case, filed by Mr. Willis in Federal court in Los Angeles, was limited to a determination of his rights in the musical compositions; the rights in the sound recordings created by the band were not at issue and remain with the record company or its assignees. After thirty-five years, Mr. Willis (and his co-owners) had the right to terminate these copyright assignments in the musicial compositions and to regain his rights in the 33 songs. This right is grant by Section 203 of the Copyright Act, a little known provision of the US copyright law; under this law, copyright assignments, exclusive licenses and non-exclusive licenses, if executed after January 1, 1978, may be terminated by an author of the work (or, if that person is no longer alive, by his or her heirs) any time during the period beginning 35 years after the date of the original assignment or license and terminating five years later. In essence, the author -or his heirs- has been given a statutory “second bite at the apple” with respect to his portion of the work. The termination right applies even if the author had signed a document expressly waiving the termination right. Songs whose copyrights were licensed or assigned prior to January 1, 1978 are not eligible for this treatment. The creation of this termination right was a key part of the Copyright Act of 1976 (which became effective with respect to works first created after January 1, 1978). It was enacted in response to the belief that many popular songwriters in the 1940s and 1950s had “given away” the rights to the renewals on their song copyrights by not fully understanding the old copyright mechanism under the pre-1978 law which had an original term of 28 years and a renewal term of an additional 28 years.
There is one important exception to this right: it does NOT apply to “works made for hire.” Under the Copyright Act, “works made for hire” are those prepared by an employee within the scope of their employment, as well as works prepared by independent contractors if there is a written agreement to treat the work as a work for hire AND the work falls into one of nine enumerated categories of work. When talking about creative works, the primary categories of works that might be eligible for “work for hire” treatment are: 1) contributions to collective works; or 2) as part of a motion picture or other audiovisual work. For example, if a group of writers worked collaboratively on a song and they all agreed in writing to treat their collective efforts as a work made for hire for another party (i.e., the agreement was not just among themselves), the termination right likely would not apply.
In this case, Mr. Willis did have co-writers, but there was no signed work for hire agreement with the music publisher or record label as to song ownership. The party currently holding the rights to those songs argued that Mr. Willis and his co-writers were “employees” of the publisher. The judge hearing the case did not agree. As a result, Mr. Willis now controls his percentage interest in the work (there is some debate as to whether there are two or three other co-writers) and is entitled to his prorata percentage on those works.
Mr. Willis, now emboldened by his recent victory (after a five year legal battle), has stated that he may prohibit the current touring version of The Village People (which is comprised of different members from when he was the lead singer of the group) from performing his works. In fact, his view is that he can now prevent all public performances of the work (which is part of the bundle of exclusive rights owned by a copyright owner), even the performances of YMCA that have become such a staple of stadium sporting events. However, since Mr. Willis did not write the compositions alone, but instead jointly with other authors, he cannot prevent those other authors (or their assignees) from granting non-exclusive licenses to perform the works. Copyright law provides that all joint owners must consent to an assignment of the work (a transfer of copyright ownership) or to an exclusive license (an agreement granting rights solely to one person), but any joint owner of the copyright may grant non-exclusive licenses without the consent of the other joint owners. If such a non-exclusive license is granted, there is a duty to account to those joint owners for their prorata share of the earnings. Thus, it is possible that the works could continue to be licensed by Mr. Willis’ joint owners (which may include the publishing company if the other individual or individuals who were co-writers do not exercise their termination rights), as long as the licenses are non-exclusive. Either way, Mr. Willis can look forward to receiving royalty checks that he has not seen for the past 35 years, and he can now probably afford not to stay at the YMCA.
