Songwriter Recaptures Rights to Disco Hits South Dakota High Court
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ArtsA Publication of Maryland VolunteerBrief Lawyers for the Arts: Left-Brain Support for Right-Brain People VOLUME 5 | ISSUE 2 SUMMER 2012 SD High Court Rules South Dakota High For Costner, Against Court Rules For Costner, Sculptor (p. 1) INSIDE Against Sculptor Songwriter by Marcia Semmes, MLA Executive Director Recaptures Rights to Disco The South Dakota Supreme Court ruled Hits (p. 1) against an artist who sculpted 17 larger-than- Sculptor to life buffalo and Lakota warrior statues for a Get Royalties resort that was never built, finding that because For USPS actor Kevin Costner displayed the sculptures at Infringement (p. 4) a suitable alternate site, he was not required to sell the works and split the profits with the artist. Copyright Office Clarifies: Yoga Poses Not Costner commissioned the sculptures from Registrable (p. 4) Peggy Detmers in the early nineties for a luxury resort called “The Dunbar” that he intended Sports Artist Wins Legal Battle to build on property he owned near Deadwood, Against University S.D. Costner and Detmers orally agreed that of Alabama (p. 5) she would be paid $250,000 and receive roy- Image courtesy of Village People alties in the sculptures’ reproductions, which Settlement Over were to be sold in the Dunbar’s gift shop. Loss of LeWitt Certificate of Songwriter Recaptures Authenticity (p.6) Detmers quit working on the sculptures in Rights to Disco Hits the late nineties because the resort had not by Frank Morgan, Esq.* Artist Cady been built. Costner convinced her in May 2000 Noland Sues Dealer after to finish the work in exchange for an addi- A federal judge in California ruled in May tional $60,000 payment. Costner also agreed Disavowing Work that the original lead singer of the “Village (p. 7) that if the resort was not built within 10 years People” had successfully recaptured his copy- or the sculptures were not agreeably displayed right interests in many of the group’s greatest elsewhere, he would give her 50 percent of the profits from the sale of the sculptures and hits, including “Macho Man,” “In the Navy,” assign the copyright of the works back to her. “Go West,” and “Y.M.C.A.” The May 2000 contract also provided that The decision in Scorpio Music v. Willis is the if the Dunbar was not under construction first to interpret the reversion provisions in within three years after the last sculpture the Copyright Act of 1976, which allow musi- was delivered to the mold makers, the par- cians and songwriters who assigned their ties would “locate a suitable site for displaying rights away 35 years ago to terminate those the sculptures.” transfers and regain control over their work. (continued on page 2) (continued on page 3) (Buffalo from page 1) Founded in 1985, Maryland Volunteer Lawyers for the Arts provides pro bono legal assistance to income-eligible artists and arts organizations, and educational workshops and Because construction did not begin within three years of seminars on topics affecting artists. MdVLA is funded by the delivery, the sculptures were eventually placed at another Harry L. Gladding Foundation; the Holofcener Foundation; site on Costner’s property. The site, “Tatanka,” includes a PNC Bank; and by an operating grant from the Maryland State Arts Council, an agency dedicated to cultivating a visitor center, gift shop, café, interactive museum, and na- ABOUT MLA vibrant cultural community where the arts thrive. ture walkways. According to the opinion, Detmers was influential in the Board/Firm Members: sculptures’ placement at Tatanka, including suggesting and • John A. Bourgeois, Esq. (Kramon & Graham) • Jason C. Brino, Esq. (Bowie & Jensen, LLC) implementing wood “mock-ups” to predetermine the exact • Rodney Carroll location of each piece. Detmers and Costner were both • Skizz Cyzyk present when they were placed and spoke at Tatanka’s • N. Gordon Knox, Esq. grand opening in June 2003. • Christopher T. LaTesta, Esq. (Venable, LLP) • John Y. Lee, Esq. (Gordon, Feinblatt, Rothman, Hoffberger & Hollander) In 2008, Detmers sued Costner, seeking a declaratory • Dana O. Lynch, Esq., Secretary judgment that because the Dunbar had not been built (Whiteford, Taylor & Preston LLP) within 10 years and the sculptures were not “agreeably • Cecil E. Martin III, Esq. (McGuire|Woods LLP) displayed elsewhere,” she was entitled to 50 percent of • Colleen McCloskey (PNC Bank) • Robert B. Middleton, Sr. (Arts Insurance Program, the profits from the sale of the sculptures. A trial court Maury Donnelly & Parr Inc.) found for Costner and Detmers appealed. • Razvan E. Miutescu, Esq. (Gorman & Williams) • Thomas V. Monahan, Jr., Esq., Vice President The state high court found that the plain words of the • (Goodell, DeVries, Leech & Dann, LLP) • Charles F. Morgan, Esq. contract unequivocally provided that if the Dunbar was • Lori A. Nicolle, Esq. (Gallagher Evelius & Jones, LLP) not built or the sculptures were not agreeably displayed • Stephen W. Oliner, CPA, CFE, CVA, Treasurer “elsewhere,” then Detmers would be entitled to half the (Hertzbach & Co., PA) proceeds from the sale of the works. • Gregory Reed, Esq. (Ballard Spahr) • Zelig Robinson, Esq. • Cynthia B. Sanders, Esq., President (Ober|Kaler) Detmers argued that “elsewhere” under the contract • Prof. Charles B. Shafer must be somewhere other than the resort’s proposed site, • Sanjay M. Shirodkar, Esq. (DLA Piper) which is now home to Tatanka. • Joel A. Smith, Esq. (Kahn, Smith & Collins PA) • Norman L. Smith, Esq. (Fisher & Winner) The court disagreed, finding that the trial court properly Adjunct Board “concluded that ‘elsewhere’ meant at a place other than • Tim Faith, Esq. The Dunbar. And because The Dunbar had not been built, • Meredith Martin, Esq. Tatanka was elsewhere.” g • Heather Welch, Esq. MdVLA Arts Brief aims to educate and inform Maryland artists about legal issues affecting them. It is not intended as a substitute for legal advice. Artists with legal issues (Village People from page 1) should seek legal counsel to address specific questions. Executive Editor: Marcia Semmes Design Director: Gina Eliadis Victor Willis, the co-author of 33 Village People composi- tions, transferred his copyright interests to the music pub- Maryland Volunteer Lawyers for the Arts lisher, Can’t Stop Music (“CSM”), a division of Can’t Stop 1500 Union Ave., Suite 1330 | Baltimore, MD 21211 Phone: 410-752-1633 Productions Inc., in the seventies. CSM then transferred Email: [email protected] | www.mdvla.org the rights in the lyrics written by Willis and others to Scorpio Music (Black Scorpio) S.A. (“Scorpio”). The agreements between Willis and CSM provided that Willis would receive between 12 percent and 20 percent, depending on the © 2012 Maryland Volunteer Lawyers for the Arts composition, of the gross receipts derived from commer- cial use of the compositions. 2 MdVLA Arts Brief : Summer 2012 When CSM filed copyright registrations in the United Works for hire — compositions prepared by an artist States Copyright Office for the 33 compositions in question, within the scope of employment or commissioned for CSM credited Willis as being one of several authors of each use in a specific way and expressly defined in writing as a song. With the 35th anniversary of these compositions, “work for hire” — are exempt from copyright reversion. Willis sought to terminate the agreements and regain his Record labels can be expected to resist copyright recap- rights and interests from CSM and Scorpio. ture by relying on this exemption; however, most recording artists would not qualify as employees, and sound recordings In the courtroom, CSM and Scorpio argued that a majority are not on the list of works in the Copyright Act that are of all authors who transferred their copyright interests in a considered works for hire. joint work, regardless of whether the transfers were a part of the same transaction or separate, had to join in a termi- Vocalists and musicians who create a sound recording are nation for it to be valid. Willis, on the other hand, argued considered the authors and own all, or at least part of, the that since he was the only person to execute the adaptation copyright. It is only through a recording agreement that agreements that granted his copyright interests, he alone the record company gains a copyright interest. When the had the right to terminate the grants. dust settles, artists will most likely be able to avoid the work-for-hire exemption and be able to recapture their The court agreed with Willis, finding that a “joint author copyrights from record labels. who separately transfers his copyright interest may unilat- erally terminate [his] grant.” The Victor Willis decision is the first in what is likely to be several years of litigation between music publishers and The court relied on the fact that when multiple authors songwriters and record labels and artists over copyright have a copyright interest in one work, they own that inter- recapture. Meanwhile, as the parties evaluate their positions est as tenants in common, each having the right to license and stake out their claims, the clock keeps ticking toward the use of the work as a whole subject to the duty to January 1, 2013, when the first copyrights are eligible for share in any profits with other co-owners. return to their original owners or heirs. g From this, the court concluded that if multiple authors * Frank Morgan is a member of the MdVLA board, join in a grant of their copyright interest, then a majority of and an attorney with Astrachan Gunst Thomas Rubin PC. them must join in its termination; however, a single author entering into an independent grant of rights may terminate that grant on his own. NEED MdVLA’S HELP? Requiring a majority of authors to terminate a grant made by one co-author would frustrate Congress’ intent to protect individual authors by “making it more difficult to terminate an individual grant than it would be to make it in the first Are you an artist with a legal issue? place,” the court said, ruling that Willis could unilaterally terminate his grants because he entered into the agree- We help artists of all stripes — ments with CSM separately from his co-writers.