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US court says Toni Basil is sole owner of Mickey masters

By Chris Cooke | Published on Tuesday 17 May 2022

The Ninth Circuit appeals court in the US last week ruled that Toni Basil is the sole owner of the recording copyright in her hit song ‘Mickey’ as part of a long-running dispute around the good old termination right in American copyright law.

That termination right allows artists and songwriters who assign – or transfer the ownership of – copyrights to record companies and music publishers to terminate the assignment after 35 years, so to reclaim the rights, albeit only within the US.

On the songs side of the music industry, the termination of old publishing contracts in the US has become quite routine, with writers reclaiming copyrights they assigned to publishers 35 years ago.

But on the recordings side there is the added complication of needing to identify who was the original default owner of any one sound recording copyright. In some cases labels claim they were actually that original default owner, meaning no assignment of rights from artist to label ever took place, meaning there is no assignment to terminate.

The rules around the default ownership of sound recording copyrights vary from country to country. Under US law the default owner are the performers and/or producers that have made creative contributions to the record. Unless, that is, the recording is made on a ‘work-for-hire’ basis, so the performer and producer are basically hired to do the recording, in which case whoever hired them is the default owner.

In various cases where artists have tried to terminate old record deals, the labels have insisted those deals were work-for-hire agreements, making the label the default owner of the copyright, meaning there is nothing to terminate. Test cases against both Sony Music and Universal Music are currently working there way through the courts, with the artists arguing that most record deals are not, in fact, proper work-for-hire arrangements.

However, when Basil – real name Antonia Basilotta – sought to terminate her early 1980s record deal to reclaim the rights in ‘Mickey’, among other tracks, the label that currently controls the recording – Stillwater – presented a different argument.

It said that the producer on the track, Greg Mathieson, should be treated as a co-author of the record. As a result, by terminating her old record deal, Basilotta could only claim a share of the recording rights, with the label retaining what had originally been Mathieson’s share.

That led to a dispute over what Mathieson’s role had been in the recording of ‘Mickey’. Was the track a creative collaboration between performer and producer, or did he basically press play on a recording session very much controlled and led by Basilotta?

A lower court basically reached the conclusion that it was the latter, making Basilotta the sole owner of the ‘Mickey’ recording copyright. Stillwater then took the matter to the Ninth Circuit, which last week affirmed the lower court ruling.

In their judgement, the appeal judges wrote: “Stillwater has not proved joint authorship by a preponderance of the evidence [and] Stillwater has produced little evidence that Mathieson exercised control”.

Despite the head of the label that hired Mathieson talking through the producer’s role in the recording process as he remembered it, the judges reckoned: “This vague description of Mathieson’s role as a producer, from someone who only occasionally witnessed Mathieson performing that role, is inadequate to prove that Mathieson was a creative mastermind behind the recordings rather than someone who was, for instance, mixing the tapes largely at Basilotta’s direction consistent with her creative vision”.

“Meanwhile”, they continued, “there is strong evidence that artistic control lay primarily with Basilotta and not with the recording company or – by extension – Mathieson. For example, the company struck draft language from its first contract with Basilotta that would have given it control over whether a recording met a ‘satisfactory … artistic standard’. That change was maintained in future contracts, which allowed the company only final approval to ensure that recordings were ‘technically satisfactory and suitable in all respects for commercial exploitation’”.

“Furthermore”, they added, “Basilotta appears to have primarily wielded creative control, selecting songs and instrumental musicians, devising the creative concepts for recordings, and even helping Mathieson mix the master tapes”.

Elsewhere, Stillwater argued that it was music industry convention that recording sessions constituted a creative collaboration between performer and producer. However, the judges said, Stillwater failed to provide expert testimony regarding the conventional role of the producer, or evidence that that was the role Mathieson performed.

“It is undisputed that Mathieson was an inexperienced producer”, the judges added, “[so] to the extent that there is some traditional role of a producer, there is less reason to think that Mathieson comported with that role than there would be for an experienced producer”.

And with all that in mind, the Ninth Circuit reaffirmed Basilotta as the sole owner of the ‘Mickey’ recording copyright.

This isn’t the only litigation Basilotta has pursued in relation to ‘Mickey’ in recent years. She previously sued over various sync deals which had been agreed without her approval.

She argued that her original record deal contained a veto of such deals. That lawsuit also alleged that the ownership of the copyright in the track was in doubt, though not because of her termination rights claim, instead because of issues with the way the recording rights had been transferred over the years after her original label, Radial Choice, went under in the mid-1980s.