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The Jesus And Mary Chain latest artists to sue their former label over US termination right
By Chris Cooke | Published on Tuesday 15 June 2021
The Jesus And Mary Chain are the latest artists to test the reach of the termination right under US copyright law by suing their former label Warner Music.
The group’s Jim Reid and William Reid say that the major has refused to comply with termination notices they filed under US law and continues to exploit their 1980s recordings in the American market which, they allege, constitutes copyright infringement.
Under American law, creators who assign their copyrights to another party have a one-off opportunity to terminate that assignment and reclaim their rights – albeit only within the US – after 35 years. With the current termination right originating in 1970s law, it only properly kicked in at the start of the last decade, but now plenty of American songwriters have started terminating old publishing contracts.
However, there remain some debates. While pretty much everyone agrees that the termination right applies to standard publishing contracts, plenty of labels argue that it does not apply to record contracts. That’s on the basis that conventional record contracts in the US are work for hire agreements, which makes the label the default owner of each sound recording copyright.
The argument then goes that if the label is the default owner of the copyright, no assignment of rights ever took place and, therefore, there is no assignment to terminate.
Plenty of artists dispute that position, mainly by arguing that record contracts aren’t really work for hire agreements, even if the actual written contract claims to be at the top. There are currently ongoing lawsuits involving all three majors in relation to this dispute.
The other big debate is whether non-American songwriters and artists that entered into publishing and record deals with music publishers and record labels outside the US can also reclaim their rights within America. The big test case on that debate to date has been pursued by Duran Duran against Sony Music Publishing in the UK courts.
At first instance the court ruled that Duran Duran didn’t have a termination right under their British publishing contract, but that was a controversial ruling that was subsequently appealed.
In the new lawsuit, the Reids – being Scottish artists who signed to a UK-based Warner label in the 1980s – are now involved in both of those debates. But with an added complication. In the UK, if a label organises a recording session, it is the default owner of the sound recording copyright under law unless a record contract says otherwise. The whole ‘work for hire’ debate isn’t relevant in the context of UK record contracts.
Providing the Reids signed a conventional record deal and Warner organised their recordings sessions, no assignment actually took place. And again, Warner will argue, if no assignment took place there is no assignment to terminate, even within the US.
In fact, we know that Warner is arguing all of the above. In the new lawsuit, the Reids report how – when they filed termination notices with Warner in the US – the label responded that the major “is the owner of the copyrights throughout the world in each of the sound recordings comprising the noticed works, and the notice is not effective to terminate WMG’s US rights”, and that according to UK copyright law the band “never owned any copyrights in the recordings which [they] could terminate”.
The major’s legal rep also added that by even servicing a termination notice the band may be “in breach of [their] contractual obligations under the 1985 agreement”, while adding that any dispute on all this “would need to be decided under the law of the United Kingdom”. They then cited the Duran Duran case.
Needless to say, the Reids and their legal team are not impressed with the employment of these technicalities and dispute the major’s arguments. They argue that by rejecting the termination notices and continuing to exploit The Jesus And Mary Chain’s recordings in the US, Warner should be held liable for copyright infringement.
The lawyer leading on the new lawsuit is LA-based Evan S Cohen, who is also working on the termination right cases involving Sony Music and Universal Music. A statement from Cohen’s law firm stresses that – even before the current termination right was incorporated into US copyright law in the 1970s – the same principle was included in earlier US Copyright Acts. And when US Congress enhanced that right in the 1970s, it “intended that songwriters and recording artists must have a ‘second chance’ to own the US rights in and to their works”.
Cohen himself adds: “Our copyright law provides recording artists and songwriters with a valuable, once-in-a-lifetime chance to terminate old deals and regain their creative works after 35 years. This ‘second chance’ has always been a part of our copyright law. In this case against WMG, the label has refused to acknowledge the validity of any of the notices of termination served by The Jesus And Mary Chain, and has completely disregarded band’s ownership rights”.
“Despite the law returning the US rights to the band, WMG is continuing to exploit those recordings and thereby wilfully infringing upon our clients’ copyrights”, he goes on. “This behaviour must stop. The legal issues in this suit are of paramount importance to the music industry”.
