April 11 (Bloomberg) -- Victor Willis, ex-lead singer of the Village People, is testing a 1976 law that lets creators regain U.S. copyrights to their works in what the Songwriters Guild of America predicted will provide a precedent for “many termination claims that will be filed in the coming years.”
A federal judge in San Diego may rule as early as this month on Willis’s request to throw out a lawsuit by the publisher of the 1970s disco group’s hits, including “Y.M.C.A.,” “In the Navy” and “Go West.” The publisher, Scorpio Music SA, sued last year to stop Willis from terminating the rights he signed over almost 35 years ago.
The case may provide the first interpretation of a law that took effect Jan. 1, 1978, giving artists and other copyright holders the option to end post-1977 transfers after 35 years.
The outcome is “critical to whether songwriters and other creators will be enabled on both a legal and a practical basis to pursue and enjoy their statutory rights, or whether publishers will be allowed to frustrate those rights through a protracted-litigation strategy,” the guild said in court papers supporting Willis.
Terminations can begin next year for anyone who served notice of an intent to recapture a copyright. Willis would own his works for the rest of his life, and his heirs would own them for 70 years more. Court filings don’t include estimates of the value of the copyrights.
Jay Cooper, an entertainment industry lawyer, said a copyright is often worth about 10 times its average annual royalties in the most recent three to five years.
Variables such as whether a song has been used in commercials and how often it has been recorded affect the value, and without that information an estimate is impossible, said Cooper, of Greenberg Traurig LLP in Santa Monica, California, who represented the singer Sheryl Crow when she sold her music publishing catalog.
A question before U.S. District Judge Barry Ted Moskowitz is whether Willis can recover copyrights on works he wrote with others. He was one of three people on most of the copyrights.
“People are talking about it like it’s the Mayan prediction for the world ending in 2012,” said Barry Slotnick, an entertainment lawyer with the New York office of Loeb & Loeb LLP. “But no one knows what’s going to happen.”
Congress gave creators the right to terminate copyright agreements because they often sign away rights before the true market value of their work is established, the songwriters’ guild said in its filing.
Transfers typically take place early in songwriters’ careers when they have little or no leverage against publishers in “far superior bargaining and economic positions,” the guild said.
The issue is especially important for recording artists who assign rights when “they’re young and have unequal bargaining positions,” said Lee Phillips, an entertainment attorney with Manatt, Phelps & Phillips in Los Angeles. Willis was in his 20s in the 1970s.
Scorpio Music SA, based in Paris, and New York-based Can’t Stop Productions Inc., which represents Scorpio in the U.S., said in a complaint filed in July that they owned the compositions for which Willis provided lyrics from 1977 to 1979.
Willis has received “hundreds of thousands of dollars” under the agreements, 12 percent to 20 percent of Can’t Stop royalty receipts for more than 30 years, according to Scorpio.
The publisher said Willis can’t terminate the rights to the Village People songs because they are “joint works written by more than one person.”
While Willis assigned his rights to Can’t Stop, other writers signed agreements with Scorpio Music, according to the companies’ complaint.
“Willis, simply because he signed documents different from the ones signed by the other authors of the same joint works, is neither the sole grantor nor only author of any of the compositions,” according to the complaint.
The companies said in a filing that the law “unambiguously requires the agreement of the majority of authors” to invoke the right of termination. Willis said in his court papers that the “express, clear and unambiguous language” of the law means that, since he executed the grants alone, he can terminate them.
Stewart L. Levy, an attorney with Eisenberg Tanchum & Levy in New York who represents Scorpio, said it would create “havoc” in the music industry if Willis was allowed to terminate his copyright separately from the others.
Willis was the original lead singer for the six-man, gay-themed disco act created in 1977 by the French producers Henri Belolo and Jacques Morali.
Named as Co-Authors
Morali and Belolo were listed with Willis as the authors of most of the 33 songs for which he seeks to terminate his copyright grant.
Willis was typically costumed as a motorcycle policeman for performances. Others often dressed as an American Indian, a G.I., a construction worker, a cowboy and a biker, based on homosexual stereotypes in New York’s Greenwich Village.
The U.S. Navy allowed the group to shoot the video of its 1979 hit “In the Navy” on the frigate USS Reasoner in exchange for the right to use the song in a recruitment campaign. The Navy canceled the campaign after a public outcry over the use of taxpayer funds to finance a video of the act.
The judge must first determine whether the parties intended to make an individual or collective grant of the copyright, said Larry Iser, an intellectual-property lawyer whose clients have included the songwriters and musicians David Byrne, Jackson Browne and Axl Rose.
“If it is true that Willis made an individual grant of his interest to the New York company independent of the other songwriters, under the plain language of the statute, he should be able to terminate his individual grant,” Iser, of Kinsella Weitzman Iser Kump & Aldisert LLP in Santa Monica, said in a phone interview.
Brian Caplan, a New York-based attorney who represents Willis, said in a phone interview that his client is entitled to 50 percent of royalties because “a royalty rate is no measurement for what creativity is.”
Willis left the Village People in 1980 “over lifestyle differences” and, after returning in 1982, left for good in 1984, according to his website.
In a statement today, Linda Smythe, Willis’s publicist, said an important development in the case was the publishers’ decision last month not to pursue their claim that Willis was “work for hire” and focus solely on whether Willis can terminate without the consent of his late writing partner Morali.
“The dismissal of the work for hire claim by Can’t Stop and Scorpio Music is a major blow to their case and vindicates Victor Willis as the singer and writer of the Village People’s biggest hits,” Smythe said. “The court will likely recognize their remaining claims as lacking merit as well.”
The Songwriters Guild called Scorpio Music’s reading of the law “tortured” and “simply nonsensical” in its court filing.
“It requires a belief that Congress somehow intended that joint authors, or their far-fledged descendants, none of whom are parties to a grant made by a co-author, must nevertheless give assent as a precondition to the exercise by such co-author of his or her termination of an individual grant,” the guild said.
The case is Scorpio Music v. Willis, 11-01557, U.S. District Court, Southern District of California (San Diego).
To contact the editor responsible for this story: Michael Hytha at email@example.com