Not only are Duran Duran, the synthpop sensation of the 1980’s, still around, but they were recently successful in an application to appeal against a judgment of the English High Court handed down in December last year. The case concerns a dispute between the band and their music publishers, Gloucester Place Music (owned by the US company Sony/ATV) in which the Band seeks to exercise their right under US copyright law to terminate the music publisher’s ability to collect royalties on some of their earlier hits.
To understand the importance of this dispute for players in the music industry, we need to look at some general principles of copyright law.
One of the main drivers behind copyright law is to promote the development of art and culture. This is achieved by granting authors a monopoly right to make copies of their works, create derivative works, perform or display their works in public and to sell or hire out their works, or reproductions of their works. Different countries have different copyright laws and the period of monopoly granted to the author of a work differs depends on the applicable laws of the relevant country. In the United States, for example, works are generally subject to protection for a period of 70 years from the death of the author. In South Africa copyrighted works are generally subject to protection for 50 years from the death of the author. This period is not extendable and once expired the work falls into the public domain and may be used, reproduced and adapted freely.
In the music industry, this means the musicians and other creators of musical works are afforded an exclusive right, for a specific period of time, to make and sell copies of their music and to perform their music in public, or to allow others to do so in exchange for a reasonable royalty. Put differently, this right entitles artists to prevent third parties from making or selling reproductions of the music or performing their music in public, without their consent, for the duration of the copyright.
On paper it looks like the musicians are in a great position to reap the benefits of their creative endeavours, but unfortunately this is not the case. Musicians face the same difficulties faced by inventors and other innovators – in finding a big name to help exploit their creation on any meaningful commercial scale, they are generally not in a powerful bargaining position and as a result are often required to sign over all of their intellectual property rights to the big name in question, in return for a share in the proceeds.
The music production companies are no different and it often results in situations in which the production companies reap inequitably huge financial rewards from artists’ blood, sweat and tears.
Nick Rhodes, one of the founding members of Duran Duran, succinctly summarised the position of many new artists find themselves in when he said “We signed a publishing agreement as unsuspecting teenagers, over three decades ago, when just starting out and when we knew no better.”
The flip side of the coin is obviously that if it wasn’t for the intervention of the music label, the artist would have achieved nothing. Debating this issue is not, however, the aim of this article.
Which brings me to the point: In 2009 in the United States, congress made an amendment to the country’s copyright legislation which effectively results in a reversion right for the author in respect of copyright that he or she has previously assigned or licensed to a third party. The amendment provides that where an author has previously transferred or licensed his copyright to a third party at any time after 1 January 1978, he or she, or his or her heir, may effectively terminate the original transfer or license after a period of 35 years from the publication of the work or 40 years after the grant of the rights, whichever comes first. The right must be exercised within 5 years beginning from the expiry of the applicable 35 or 40 year period.
The aim of this amendment is obviously to allow authors, who have now achieved some level of fame and repute, to regain control of their copyright and commercially exploit it for their own gain for the remainder of the duration of the term of copyright.
South African copyright law contains no similar provisions, and the situation is quite clear. Musicians beware – once you assign your copyright to a record label, you have no legal leg to stand on to try and get it back later. To avoid signing a contract in which you don’t fully understand the implications of what you’re agreeing to it is always a good idea to seek advice from an attorney with experience in intellectual property, and specifically copyright, law to guide you in the course of your negotiations.
Written by Vicky Stilwell, Director and Trade Mark Attorney, KISCH IP