I have a question about reversionary rights in works made for hire under US copyright law. Blah, blah, blah, blah…
Copyright Law Geek
Perhaps a recent announcement will clarify your understanding of this complicated and arcane area of the law…
According to recent press reports, Harry Shearer, Christopher Guest, Michael McKean and Rob Reiner, the creators of the iconic “mockumentary” film This is Spinal Tap, have settled their law suit with Universal Music Group (UMG) and others regarding the film’s soundtrack recordings. (Century of Progress Productions et al v Vivendi SA et al, U.S. District Court, Central District of California, No. 16-07733)
The $125 million lawsuit, originally filed in October 2016 alleged that UMG and Studiocanal underpaid music royalties and sought to reclaim their copyrights to the film, its songs and characters. The complaint said Vivendi reported only $98 in total income from soundtrack music sales between 1989 and 2006, and just $81 in worldwide merchandising income. The plaintiffs started a website to give information about how artists are treated.
Vivendi argued that three of the co-creators’ companies did not have the legal right to sue. District court judge Dolly Gee agreed, but she permitted Guest’s case to proceed and allowed the other three the option to sue individually. The three then sued individually, as well as detailing further allegations of fraud by Vivendi. They alleged omission of a $1.6 million payment by MGM to Vivendi in 2004, which represented a settlement in respect of VHS & DVD revenues originally under reported by MGM, as well as improper expense deductions made in Vivendi’s accounting for print, advertising and publicity expenses of more than $3.3 million and a further $1 million in freight and other costs.
The complaint also sought a judgment in the actors’ right to reclaim their copyright to the film and elements of its intellectual property (screenplay, songs, recordings and characters). Vivendi claimed that the film was created as a work for hire, which made the studio the author. Under US law, this would prevent the actors from exercising their right to reclaim the copyrights to the film until 35 years after its initial release.
“The scale and persistence of fraudulent misrepresentation by Vivendi and its agents to us is breathtaking in its audacity,” Shearer said in a statement at the time the suit was filed. “The thinking behind the statutory right to terminate a copyright grant after 35 years was to protect creators from exactly this type of corporate greed and mismanagement. It’s emerging that Vivendi has, over decades, utterly failed as guardian of the Spinal Tap brand – a truer case of life imitating our art would be hard to find.”
According to the announcement that the case had been settled, under the agreement Spinal Tap’s recordings will continue to be distributed through UMG, and “eventually the rights will be given to the creators. The parties look forward to making these beloved recordings available to existing and new Spinal Tap fans for years to come.”
Harry Shearer (bassist Derek Smalls in the film) said, “I must admit, from the moment we first began mediation with them to now, I’ve been impressed by UMG’s respect for creatives and their distinctive desire to seek a prompt and equitable solution to the issues.”
The Doc hopes that clears things up. If not, he suggests that you turn the music up to “11” and invite a little person over to listen with you.
Have a complex (or not-so-complex) copyright question? Talk to one of the attorneys at LW&H. As far as legal knowledge goes, theirs also goes to 11.
Until next month,
— Lawrence A Husick, Esq.