Vanderbilt Journal of Entertainment & Technology Law Volume 7 Issue 2 Issue 2 - Spring 2005 Article 6 2005 Termination Rights and the Real Songwriters Geoffrey P. Hull Follow this and additional works at: https://scholarship.law.vanderbilt.edu/jetlaw Part of the Entertainment, Arts, and Sports Law Commons, and the Intellectual Property Law Commons Recommended Citation Geoffrey P. Hull, Termination Rights and the Real Songwriters, 7 Vanderbilt Journal of Entertainment and Technology Law 301 (2020) Available at: https://scholarship.law.vanderbilt.edu/jetlaw/vol7/iss2/6 This Article is brought to you for free and open access by Scholarship@Vanderbilt Law. It has been accepted for inclusion in Vanderbilt Journal of Entertainment & Technology Law by an authorized editor of Scholarship@Vanderbilt Law. For more information, please contact [email protected]. Termination Rights and the Real Songwriters By Geoffrey P. Hull* Collaboration- the act of more than one songwriter writing a song-has seldom, I. Co-Authorship in Songwriting if ever, been more popular or prevalent in The extent to which producers, artists, popular music. A perusal of a recent Billboard label executives, and others may demand Hot 100 singles chart revealed that 85 of the writer credits and shares of copyrights in charted songs had more than one writer in return for recording a song is'difficult to their credits. Of the fifteen with single writer determine. It is clear that the practice is credits, thirteen were by the recording artists. longstanding. Al Jolson reportedly got one- The other two were remakes of decades-old third writer credit and income on the song hits.1 More often than not, especially on the "California Here I Come," though the song pop charts, some of the co-writers are the was actually written by Buddy DeSylva and recording artists or the producers of the Joe Meyer.2 ASCAP lists 43 compositions with recording. Many times these artist and Jolson as a co-writer.3 Elvis Presley's Presley producer co-writers have actually written part Music and Gladys Music were created so that of the song. Other times, however, they may Elvis could own the publishing rights to songs have been involved in a deal that granted co- he recorded, or could become a co-writer as writer credits in exchange for recording the well. Elvis' rights in "Heartbreak Hotel" were song. What are the implications of the likely a result of this arrangement. 4 BMI lists 5 creation of phony co-writer status for the 22 compositions with Presley as a co-writer. copyright ownership and for the rights of the Record label executives George Goldner of "real" authors? This Article attempts to Gee Records and Morris Levy of Big Seven unravel the situation created by overreaching Music/Roulette Records listed themselves as authors on copyright "Al Jolson reportedly got one- registrations of third writer credit and income "Why Do Fools Fall in Love," on the song "California Here I even though neither was a 6 Come," though the song was "true" author. actually written by Buddy BMI lists Goldner as a DeSylva and Joe Meyer." writer or co- writer on 4b compositions artists and producers. It argues that "real" and Levy as co- authors have a remedy to get their copyrights writer on three compositions. More recently, back by utilizing the statutory right of the New York Post reported that Celine Dion termination of transfers. and her husband/manager were demanding Spring 2005 MUSIC 20 percent of publishing royalties for putting or producer's publishing company. In one songs on the "Let's Talk About Love" album.7 instance, the original writer may have agreed Songwriter Jimmy Webb, writer of "By The to, or at least tacitly accepted, the other party's Time I Get to Phoenix," "Up, Up and Away," presence, perhaps as an incentive to get a "The Worst That Could Happen," "Mac Arthur producer or artist to record the song. In the Park," and "Wichita Lineman" recounts, other, the original writer did not agree to other party's partial copyright ownership; the other On one occasion I sat at the piano and party simply inserted his or her name in the played a song for a staff producer who copyright registration or album credits as a made a couple of diffident suggestions writer. - one of which I thought was not too If the music publisher to whom the bad, and which I subsequently original writer transferred copyright ownership incorporated rather absentmindedly in exchange for royalties cuts in, or shares, the into the finished product. He recorded publisher's share of copyright ownership or the song, sang it himself, had the earnings with a third party, then the author recording pressed up before I knew it, initially should have no objection. Such and there under the song's title in arrangements would not usually reduce the parentheses, his name was included writer's standard fifty percent share of the with mine [as a co-writer].8 publishing revenues. On the other hand, if the original writer finds that the recording artist or This Business of Music notes, "Some producer demands a share of the credits and dissatisfied publishers claim they are forced to rights as a songwriter or publisher to get the share copyrights with recording stars and song recorded, then the original writer is at a record company publishing affiliates, and that disadvantage. Faced with the superior this is akin to payola; however the practice bargaining and gate-keeping power of an artist appears uncoerced from a legal point of view."9 or producer, the original writer must either It suggests that a contractual "cut-in" share of share writer credits and royalties or look royalties for artists or labels in publishing elsewhere to get the song recorded. For songs income is preferable to a "co-writing" credit or that have already become hits, the writers could co-ownership of the copyright. "Asking for a probably find other outlets for their recordings. cut-in is not the same as demanding to be The same is not true for previously unrecorded named a co-writer of the composition to obtain songs of undetermined value, where the original a share of the writer credits and payments from writer has almost no choice other than to allow ASCAP or BMI [or SESAC]. The latter practice the artist or producer to be listed as a co-writer may constitute a fraudulent registration in the and give up a share of the earnings. With the Copyright Office."10 Part IV, below, discusses duration of copyright now lasting generally for the possible effects of such a fraudulent life of the author plus seventy years," or 95 registration. These scenarios "If the recording artist or suggest two situations producer does not create any where someone other than the of the song, then they cannot original writer be authors. in the strict of a song later becomes a co- Constitutional sense of the writer in name only, obtains word," some or all of the publishing rights on the song, or gets a split years for works created and published before of revenues or music publishing with the artist's 1978,12 songwriters may not have an option. Spring 2005 302 Termination Rights and the Real Songwriters There is, however, a "A more difficult question is the mechanism in the copyright extent to which a contribution law that should enable the must be made by a putative original writer co-author in order for that person to recapture the e n t i r e to be accorded the status of a'joint copyright, even though these author.' " recording artists and producers claim shares of the copyrights as their contributions, unless there is some written writers when they are not. If the artists and indication to the contrary. In Papa's-JuneMusic, producers are not really joint authors, as will Inc. v. McLean, the court held that Harry be explored below, then they must be licensees Connick, Jr. and Ramsey McLean owned equal or transferees. If that is the case, then their shares in the works in question because there rights to utilize the work are subject to statutory was no agreement prior to their creation that termination of transfers by the original writer(s) the shares were to be anything other than or their heirs under the termination of transfers equal. ' 9 In past collaborations, McLean and provisions of the Copyright Act of 1976.13 Connick agreed to split their ownership 30/70, respectively.20 The court noted that a split other A. Co-writing and Joint than 50/50 constituted a transfer of copyright 21 Authorship ownership and, as such, had to be in writing. It is quite common, especially in McLean had made Connick aware that he musical compositions, for more than one wanted to alter the arrangement for the songs author to be involved in the creation of the in question, but Connick proceeded to assume work. In most of these situations, the a 30/70 split, asserting an oral agreement on definitions of the Copyright Act regard them the previous split.22 In requiring a written as "joint authors." A "joint work" is one agreement, Judge Cedarbaum stated, "prepared by two or more authors with the intention that their contributions be merged An author can mistakenly or into inseparable or interdependent parts of a fraudulently claim an oral transfer of unitary whole."1 4 The legislative history copyright ownership from his joint suggests that, when one songwriter creates the author. If joint authors are forced to words to a song and another creates the music, put their agreement into writing, there they would be creating joint works because is less opportunity for fraud or mistake.