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2 Live Crew urges US judge to dismiss lawsuit seeking to block a termination right claim
By Chris Cooke | Published on Monday 5 December 2022
Members of 2 Live Crew have called on a US judge to dismiss a lawsuit filed against them by Florida-based Lil Joe Records and to confirm that they can terminate a 1980s record deal and reclaim the rights in all the recordings released under that deal.
The music under dispute was originally released by Luke Records, the label run by 2 Live Crew member Luther Campbell. Those recordings were then acquired by Lil Joe Records – along with other copyrights and trademarks controlled by the group – in 1996 when both Campbell and Luke Records went bankrupt.
Under US copyright law, if a creator assigns – so transfers – a copyright to a business partner, that assignment can be terminated 35 years later, allowing the creator to reclaim their rights. That particular termination right was added to US copyright law in the late 1970s and therefore started to apply in the 2010s.
Certain criteria must be met and admin tasks undertaken to apply the termination right, though on the songs side of the music industry songwriters reclaiming copyrights after 35 years has become quite routine.
However, on the recordings side, there remains some debate as to whether the termination right even applies. That’s on the basis that record contracts are arguably work for hire agreements, which makes the label the default owner of any sound recording copyrights created. Which means there’s no assignment to terminate.
That remains a controversial argument, though, that is currently being tested in court. And along the way plenty of artists have been able to renegotiate old record deals by threatening to begin termination right proceedings.
Among those disputing whether or not artists can terminate old record deals is Lil Joe Records. So, when members of 2 Live Crew – specifically Campbell, Mark Ross (aka Brother Marquis) and the estate of Christopher Wong Won (aka Fresh Kid Ice) – tried to terminate their 1980s record deal with Luke Records, Lil Joe Records sued to block any termination.
In its lawsuit last year, the label provided various reasons why the termination right didn’t apply. For example: “The requisite and proper notice has not been provided; Luther Campbell, Luke Records and Mark Ross bankruptcy orders extinguished any ability they might otherwise have to terminate; [and] Christopher Wong Won and Mark Ross each conveyed their termination rights to plaintiff pursuant to written agreements”.
Oh, and the deal with Luke Records was a work for hire agreement – even in the case of Campbell, who owned the label. Therefore Luke Records was the copyright owner of all the recordings by default, so the group’s members have no personal claim to the copyrights.
However, in a new legal filing, the members of 2 Live Crew dispute all those claims. “In ruling on this motion, the court need only address one material issue”, that filing states.
“An artist may, 35 years after publication of a work, terminate the initial transfer of ownership for that work’s copyrights and reclaim the copyrights. The band 2 Live Crew granted to [Luke Records] copyright ownership of five albums from 1986 to 1990 and sent a notice to terminate said grant with an effective termination date 35 years after the publication of each album”.
“Was 2 Live Crew’s termination effective?”, it then asks. “The answer to this question is ‘yes’ and defendants/counterclaimant’s first counterclaim for a declaratory judgment validating 2 Live Crew’s termination should be adjudicated in defendants’ favour”.
The rest of the legal filing outlines why the group feel they have the right to terminate their 1980s record deal and why none of the arguments put forward by Lil Joe Records are valid.
For example, “Lil Joe may argue that defendants lost their termination rights in prior bankruptcy proceedings or through old settlement agreements (all of which occurred before the termination right vested) – this argument, though, is foreclosed by the Copyright Act’s text”.
“2 Live Crew did not create the subject albums as works for hire and thus had the right to terminate the transfer”, it also adds, before discussing how the work for hire principle has been defined in other US legal cases.
We now await to see what the judge makes of all those various claims and arguments.
