Sunday, May 20, 2012

Paul Horn's "Dream Machine" and Copyright Termination

Last week, a federal court judge in San Diego ruled that Victor Willis, the cop in the Village People music group, had the right to terminate his prior transfer of interest in certain musical compositions, including Village People hits.

I was not a big fan of the Village People, although it was difficult not to listen to their all-prevalent music in the 1970s. But I was, and continue to be, a fan of Paul Horn, the flutist. My favorite Paul Horn album is "Dream Machine" on Mushroom Records, that came out in 1978. Just what does the ruling favoring Victor Willis' copyright transfer termination have to do with Paul Horn and "Dream Machine" ?

The present Copyright Act permits the termination of prior copyright transfers in certain instances. The rules for termination differ for transfers occurring prior to January 1, 1978 and after that date (the present Copyright Act took effect on January 1, 1978). For post-1977 copyright transfers, the U.S. Copyright Act permits termination during a five year period only, commencing 35 years following the execution of the grant. To effect termination, a notice of termination must be provided to the grant recipient at least two years prior to the date of termination.

Because this coming January 2013 represents 35 years following the effective date of the present Copyright Act, the first wave of terminations is expected to begin this coming January for transfers occurring in 1978, so long as at least a two year advance notice of termination is given. Willis gave his notice of termination timely, with the intent to effect a termination of his post-1977 copyright grants in his musical compositions to Scorpio Music and Can't Stop Productions. Not being pleased to lose ownership of valuable music rights, Scorpio Music and Can't Stop Productions brought a declaratory judgment action, seeking a court determination that Willis did not have the right to terminate his prior transfer.

Willis won. The court ruled that the statute means what it says. If a person makes a transfer of copyright post-1977, then the transfer can be terminated during a five year window beginning 35 years following the date of the transfer, provided at least a two year advance notice of termination is given. Willis complied with the notice requirement, and come 2013 he will be permitted to recapture his copyright interest in previously transferred music compositions. And because the termination cuts off the rights of the grant recipients, Scorpio Music and Can't Stop Productions, Willis' recapture is not restricted by the royalty limitations included in the grant.

It may come as a bit of a shock to learn that an asset bought and paid for can be lost after 35 years with no reimbursement. Copyright transfer is a limited right. The court explains that one purpose of the copyright termination provision is to"safeguard authors against unremunerative transfers" and address "the unequal bargaining position of authors, resulting in part from the impossibility of determining a work's value until is has been exploited."

But there is another justification supporting copyright termination. This brings me to Paul Horn's "Dream Machine." This jazz-funk-fusion album came out in 1978, featuring Paul Horn, Joe Sample, Emil Richards, Dean Parks, Ernie Watts, Jim Keltner, and a host of other fine musicians. The album was composed, arranged and conducted by Lalo Schifrin (he composed the themes to Mission Impossible and The Man From UNCLE, music for Cool Hand Luke, Dirty Harry, and other well-known music). Dream Machine is magic. And it is out of print. There are a few albums available from resellers. But the label, Mushroom Records, is out of business and new vinyl, CDs, and electronic versions are not available. This is a great album, which new listeners will not be able to enjoy.

Perhaps Paul Horn and Lalo Schifrin have given their notices of termination to Mushroom Records, or to whoever now owns the rights to that label's assets. If so, perhaps they may be able to reclaim ownership and control of this great music. Of course, there is a question about ownership of the original recording tapes, but these tapes will not have much value without ownership of the underlying copyright. Perhaps one day, the termination right in the Copyright Act will permit the reintroduction of music that has been buried or out of print for too long. But, the period to deliver the notice of termination is short -- five years. Then the termination window slams shut, forever.

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