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Universal and Sony hit back at artists leading termination right test cases

By | Published on Tuesday 6 October 2020


Universal Music and Sony Music are continuing to fight the big two termination right cases that have been filed with the US courts, both accusing the artists pursuing said lawsuits of bad conduct.

The American termination right says that ‘authors’ who assign their copyrights to another entity have a one-time opportunity to terminate that assignment and reclaim their rights after 35 years. So if a songwriter assigns the copyright in their songs to a music publisher in a long-term or life-of-copyright deal, they have a one-time opportunity to terminate that assignment after 35 years.

On the songs side of the business, such terminations have become more or less routine. But on the recordings side, many labels are fighting efforts by artists to terminate old record contracts.

This is principally on the basis that those contracts are so called work-for-hire agreements, making the label, not the artist, the default owner of the resulting copyright. Therefore, there was no assignment of rights from artist to label 35 years ago and as a result the right to terminate that assignment does not apply.

Needless to say, most artists disagree with that argument, in turn arguing that record deals aren’t really work-for-hire agreements at all, even if they claim to be in the actual contracts. After years of debate on that point, both Universal and Sony were sued last year by various artists seeking to reclaim their recording rights.

According to The Hollywood Reporter, in the latest development in those cases, key artists involved have been accused by their labels of infringing copyright by distributing “pirate” versions of their old recordings on their own websites. Universal has made that allegation against Joe Ely and Syd Straw, while Sony is countersuing John Lyon and Paul Collins for the unlicensed distribution of their old tracks.

Those artists will possibly argue back that – despite the majors’ refusal to formally terminate old record contracts – as far as the musicians are concerned they have termination rights and are enforcing those rights, and are therefore able to now redistribute their old recordings originally released by Universal or Sony labels. Though technically only in America, as it’s generally been agreed to date that the termination right only applies to copyrights being exploited within the US.

For its part, Sony is going even further, also seeking to countersue Lyon and Collins for secondary copyright infringement because their lawyer, Evan Cohen, is using artwork from those artists’ albums on a web page about the litigation.

Sony says that it owns the copyright in that artwork and that Cohen is using it without licence to promote his termination right services to other artists. Which is interesting. Cohen will almost certainly say that use of that artwork is covered by the principle of ‘fair use’ under US law, though Sony will likely then stress that the web page is basically advertising and therefore fair use should not apply.

Maybe whoever created the artwork – assuming they weren’t a full-time employee of the label at the time – could try to enforce their termination rights over those visuals and then license their use to Cohen for free in return for a discount on him overseeing the termination. It’s copyright technicality central – fun times!

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