Earlier this year a US court ruled that when music creators exercise their termination right in American copyright law, to reclaim rights previously transferred to a business partner like a music publisher, that termination applies globally, and not just in the US as the music industry has always assumed.
It was a major ruling that potentially overturns a long-standing industry convention, allowing artists and songwriters to take back rights in their music - and the accompanying revenue streams - all over the world, and not just in the US. Perhaps unsurprisingly, five organisations that represent American music creators have now come together to stress that this was the right ruling.
They are urging the Fifth Circuit Appeals Court to uphold the landmark judgement, telling the appeals court that the outcome to this case “matters to every songwriter, every composer, and every music creator who has ever signed away their rights before understanding their works’ true value”.
The music industry argues that any new legal precedent that expands the reach of the termination right “will disrupt the status quo”, which basically means record labels and music publishers who previously entered into long-term deals with artists and writers will lose more rights and therefore more money. But that, say the creator groups, is “not a sufficient rationale” for reversing the lower court’s ruling.
And more importantly, they add, by expanding the reach of the termination right, this ruling properly achieves what Congress was aiming for when it introduced the right in the first place. Which was to “protect creators from the consequences of early, unremunerative deals made when they had little bargaining power and no crystal ball to predict their future success”.
“For music creators in today’s global marketplace”, they add in a filing with the Fifth Circuit, “limiting these protections to domestic recapture alone has flown in the face of Congress’s intent in enacting the right of termination”.
The organisations behind this filing include the Music Artists Coalition, performer union SAG-AFTRA, the Black Music Action Coalition, the Artist Rights Alliance and Songwriters Of North America.
Ron Gubitz, Executive Director of the MAC, says, “When industry heavyweights line up to defend the status quo and fight against expanded songwriter protections, artists need an advocate”, and “that’s precisely why MAC exists, to champion the rights of music creators”.
“This case could impact so many songwriters who have signed away rights before understanding their works’ true value”, he goes on, adding “I’m grateful to our partners SAG-AFTRA, ARA, BMAC and SONA to stand together with us in this filing”.
Under US copyright law, when a creator transfers - or ‘assigns’ - the copyright in their work to a business partner, they can terminate that assignment and reclaim their rights after 35 years. In this case, songwriter Cyril E Vetter assigned the copyright in his song ‘Double Shot (Of My Baby’s Love)’ to music publisher Windsong. That copyright was then subsequently acquired by Resnik Music Group.
Vetter then exercised his termination right, but Resnik argued that the termination only applied to the copyright in his song within the US, meaning it still controlled the copyright in the rest of the world.
The publisher was correct to say that that is generally how the music industry has applied the termination right. However, Vetter argued that industry convention was wrong and that the termination of the original assignment meant he should now have control over the copyright in his song worldwide.
Resnik wasn’t just relying on industry convention, arguing that the precise wording of the US Copyright Act regarding the termination right backed up its interpretation of that right.
Though, as explained in CMU’s coverage of the original ruling, that interpretation depends on how you apply the global treaties that connect all the copyright systems around the world, and which allow the owners of US copyrights to enforce those rights in other countries. In the case of a song copyright, that would be the Berne Convention.
Either way, judge Shelly Dick sided with Vetter, declaring that he now owned the copyright in his music worldwide, and setting a precedent that could be relied upon by other music creators exercising the termination right and looking to get their rights back globally. Resnik is appealing the decision.
In their filing to the appeals court, the creator groups discuss in some detail the imbalance that is common in deal negotiations between music creators and music companies like labels and publishers, especially when artists and writers are at the start of their careers. It’s an imbalance that favours the corporate rightsholders, of course.
“The music industry often operates on a fundamental power imbalance that the termination right was designed to address”, they write. “The termination right represents one of the few tools available to musicians to address a growing disparity between traditional grants of perpetual, worldwide rights and potentially lucrative global revenues”.
And those global revenues are all the more important in the streaming age, they add. “Streaming platforms have made international exploitation the norm rather than the exception”, they explain. “In this highly connected, worldwide, media environment”, they argue, “limiting the termination right solely to domestic exploitation would provide creators with only a fraction of the benefit they deserve”.
Therefore, they conclude, “the termination right can only fulfill its intended protection” if it “encompasses the global scope of modern music exploitation”.