Bit Parts

Copyright termination rights have been a hot button issue in the music industry in the past several years, with 2013 being the first year under 17 U.S.C. '203 that authors could recapture copyrights for assignments they made for works created after 1977. A dispute between the rock band Blondie and the group's former manager Peter Leeds has raised the issue of a manager's commission rights when artists terminate those copyright assignments. Leeds managed Blondie when the band began having big hits in the latter half of the 1970s with Chrysalis Music. But Leeds and Blondie parted ways under a May 1979 written agreement. The agreement gave Leeds post-term commissions from “gross earnings” on Blondie's existing agreements in effect before Feb. 9, 1985, and to music created by the group members by that date. BMG Rights Management (BMG) later became the successor-in-interest to Blondie's music publishing agreements with Chrysalis. In December 2012, instead of exercising its copyright recapture rights, the band sold those rights to BMG for $1.3 million, which Leeds then claimed he had a right to commission. Blondie argued the statutory recapture rights didn't fall within the band's 1979 separation agreement with Leeds. In deciding Leeds' motion for summary judgment, Justice Anil C. Singh of the New York Supreme Court, New York County, first noted in part: “Leeds' interpretation that the payment for recapture rights falls within the broad definition of gross earnings is reasonable. The examples given in paragraph 3 [of the 1978 Leeds/Blondie agreement] of the types of income sources are by way of example and state, 'Without limiting the generality of the foregoing, it is understood that you are entitled to a commission on all of our earnings derived from records and tapes, writing and composing musical compositions, music publishing, personal appearances, television, radio commercials, merchandising and endorsements.'” But Justice Singh then emphasized: “Conspicuously absent from the Termination Agreement is a specific commission rate that would apply to the sale of statutory recapture rights.” Denying Leeds' summary judgment motion, Judge Singh concluded that the Leeds/Blondie agreement, “when read as a whole is ambiguous ' [T]his Court finds that there are genuine issue of material fact'.” Leeds v. Harry, 157749/13.

Grant of Exclusive Right to Use Four Seasons Band Member's “Biography” for Jersey Boys Also Transferred Copyright in His Autobiography Manuscript

The U.S. Court of Appeals for the Ninth Circuit decided that a 1999 grant by Tommy DeVito, an original member of the Four Seasons music group ' to original band members Bob Gaudio and Frankie Valli ' of exclusive rights to use DeVito's “biography” as part of what became the musical Jersey Boys, also transferred the copyright in DeVito's unpublished autobiography. Corbello v. DeVito, 12-16733. DeVito had worked on the autobiography with attorney/journalist Rex Woodward, who died in 1991. After Jersey Boys became a hit, Woodward's widow, Donna Corbello, sued DeVito, Gaudio, Valli and others related to the internationally successful stage production. Corbello claimed Jersey Boys was in part a derivative work of the DeVito autobiography of which, as her late husband's successor in interest, she had a co-ownership interest and thus a right to a share in the musical's profits. The U.S. District Court for the District of Nevada, however, granted summary judgment to the defendants. Reversing and remanding, the appeals court noted: “DeVito cannot plausibly claim to have retained [in the 1999 agreement with Gaudio and Valli] his privilege as a copyright co-owner to create derivative theatrical works of any biographical manuscript he owns, yet surrendered exclusively to others his generic 'life story,' along with his name and likeness, to create a play. Relinquishing one's right to exploit creatively his or her 'life story,' while at the same time retaining a corresponding right over one's written biography, would be a self-defeating endeavor.”

Stan Soocher is Editor-in-Chief of Entertainment Law & Finance and a tenured Associate Professor of Music & Entertainment Industry Studies at the University of Colorado's Denver Campus. He is the 2014 recipient of the State Bar of Texas Entertainment & Sports Law Section's “Texas Star Award.” Stan can be reached at [email protected] or via www.stansoocher.com.