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The Future Is Now 45

THE FUTURE IS NOW: COPYRIGHT TERMINATIONS AND THE

LOOMING THREAT TO THE OLD SCHOOL

HIP-HOP SONG BOOK

by K

EVIN

J. G

REENE

African-American slaves and their descendants gave the world musi-

cal gold in the music that came to be known as the blues.

The blues also

birthed several genres including: doo-wop, soul, R&B, funk, and disco mu-

sic All Black popular music emanates from the blues, including the most

popular music of today — hip-hop.

The blues and its progeny generated colossal wealth in the United

States and abroad. Tragically, that wealth often by-passed its creators,

who stood on the lowest rung of the social ladder in a society rife with

racial and gender inequality. Black innovators and journeymen alike suf-

fered deprivation under the American copyright system and its partner in

crime, common law contract doctrine. Many Black creators, such as Jelly

Roll Morton, a foundational jazz innovator, died impoverished.

Even

those who did well often received a pittance compared to their actual

value of their contributions.

My scholarship pioneered the field of critical race studies in intellec-

tual property . Way back in 1999, I posited that same dynamics underlying

the wholesale expropriation of works by African American artists was

John J. Schumacher Chair Professor of Law, Southwestern Law School, Los

Angeles, CA, J.D. Yale Law School, Recipient, 2016 Vanguard Award for Innova-

tion in Intellectual Property.

See Emily Weiler, The Roots and Impact of Blues Music

HITWORTH

IGITAL

OMMONS

(2017), https://digitalcommons.whitworth.edu/cgi/viewcontent.

cgi?article=1001&context=HI241, (noting that arising from African traditions,

“many spirituals, work songs and hollers, now more often referred to as slave

songs, became the foundations for the blues.”).

William F. Danaher & Stephen P. Blackwelder, The Emergence of Blues and

Rap: A Comparison and Assessment of Context, Meaning and Message, 17 J.

OPU-

LAR

USIC

& S

’

1 (1993) (“Rap music shares its origins with another lower-

class music movement: blues music of the 1930’s, 1940’s and 1950’s.”).

See Jelly Roll Morton — Final Years of Frustration (1939-1941) As told by Jelly

Roll Morton in his letters to R. J. Carew,

AZZ

. (annotated by George W. Kay),

http://www.doctorjazz.co.uk/page24.html (noting that Jelly Roll Morton’s “first

months in New York were almost catastrophic for him. Suffering from failing

health, he roamed the streets of the city in futile attempts to get bookings, sell his

latest sheet music and collect royalties from publishers.”). Morton kept a journal

of his final years, painting the bleak picture of a man fighting against his music

publisher and ASCAP for compensation.

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46 Journal, Copyright Society of the U.S.A.

likely to replicate in the treatment of hip-hop artists.

There is a remarka-

ble continuity in the characteristics of the blues men and women of the

1920’s and the hip-hop artists of the 1980’s — and of today.

The blues was born in the impoverished rural South in the early twen-

tieth century. The harsh laws of segregation cast a shadow of inequality

on every aspect of the lives of blues artists.

My scholarship contends that

analyzed how copyright law, although “race neutral” on its face, disadvan-

taged Black musical creators.

Blues artists like Bessie Smith, Howlin’

Wolf, Muddy Waters, Ma Rainey and scores of others created works of

genius under the shadow of the 1909 Copyright Act, a law rife with stan-

dards of protection and technical formalities that devastated copyright

ownership and protection for blues and other Black artists.

The 1909 Copyright Act did not have termination provisions. Rather

the 1909 Act contained a mechanism called renewal.

Under the renewal

provisions of the 1909 Act, authors could exercise two consecutive terms

of twemty-eight years in duration.

In theory, authors who signed away

copyrights in “unremunerative” contracts involving the initial term could

negotiate a better deal for the renewal term twenty-eight years later when

the true value of their works would be known.

Unfortunately, the re-

newal provision proved ineffective because the Supreme Court inter-

preted the law as allowing artists to assign away their renewal rights at any

time.

The current 1976 Copyright Act purports to fix this problem by

creating recapture rights through termination and providing that the ter-

mination right remains inviolate, “notwithstanding any contract [signed by

the artist]to the contrary.”

These termination rights allow authors who

transfer their copyright rights the ability to undo those transfers during a

5-year window that begins thirty-five years after the transfer in question.

Kevin J. Greene, Copyright, Culture and Black Music: A Legacy of Inequality,

AST

. C

. & E

. L.J

. 339 (1999).

EROI

ONES

, B

LUES

EOPLE

: N

EGRO

USIC IN

HITE

MERICA

(1963).

See, e.g., Greene, Copyright, supra note 4, see also Kevin J. Greene, Intellectual

Property at the Intersection of Race and Gender: Lady Sings the Blues, 16

MER

. U.

J. G

ENDER

, S

OCIAL

’

THE

. 365, (2008), Kevin J. Greene, Papa’s Got a

Brand-New Bag James Brown, Innovation, and Copyright Law, in

FRICAN

MERICAN

ULTURE AND

EGAL

ISCOURSE

179 (Lovalerie King & Richard

Schur eds., 2009).

See Copyright Act of 1909, Pub. L. No. 60-349, § 23, 35 Stat. 1075, 1080 (1909).

Id.

See

H.R. R

2222 (1909).

See Fred Fisher Music Co. v. M. Witmark & Sons, 318 U.S. 643, 657-68 (1943).

See 17 U.S.C. § 203(a)(5).

See Id. § 203(a); 203(a)(3).

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The Future Is Now 47

Today, many great American musical works, including seminal hip-

hop works from the late 1980’s and ‘90’ are entering the window of copy-

right termination. Unfortunately, for very early hip-hop artists like Sugar

Hill Gang who in 1979 released the seminal rap record Rapper’s Delight

and Kurtis Blow, who released The Breaks in 1980, it is already too late to

recapture. And as each year ticks by, another hip-hop artist is likely to

find the copyright termination windows closed. Once these windows close,

recapture becomes impossible.

This article contends the current promise of copyright recapture is

severely attenuated by the formalistic and complex labyrinth of copyright

termination provisions, as well as music industry practices, customs, and

outright resistance to copyright terminations. Furthermore, the copyright

recapture provisions as structured are little more than a travesty that

dooms recapture for all but the most sophisticated, well-financed and dili-

gent artists. The current system of copyright terminations disadvantages

creators of all colors, but most of all African-American artists, who are

both highly innovative and poorly resourced as a class.

If artists fail to navigate the labyrinth of the copyright termination

provisions, the rights to their works will remain with the entities that con-

trol those rights.

Section 203(b) makes clear that, unless effectively ter-

minated within the applicable five-year period, all rights covered by an

existing grant will continue unchanged, and that rights under other federal,

State, or foreign laws are unaffected.

The end result is that corporate

conglomerates — record labels and music publishing companies— will re-

tain those works and exercise all rights to them for the balance of the

The copyright recapture provisions, as structured are little more than

a travesty, ensuring that all but the most sophisticated, well-financed and

privileged authors will never exercise termination rights. In this sense, the

termination provisions act as a kind of reverse redistribution, taking rights

from the least advantaged and conveying those rights to hegemonic corpo-

rate interests. Black artists, such as hip-hop artists, will bear the brunt of

reverse redistribution. History teaches that “[i]n the grand narrative of

freedom and civil rights, the disadvantages that persist are invisible pre-

cisely because people in power continuously innovated new forms of dis-

See Melvin D. Nimmer, Termination of Transfers Under the Copyright Act of

1976, U.

L.J. 947, 89 (1977) (“If the persons entitled to terminate a grant fail to

serve a proper termination notice within the required time, or otherwise to comply

with the required formalities, no termination will occur by operation of the provi-

sions of the new Act. The grant will continue in effect unless terminated by its own

terms or for other reasons.”).

See 17 U.S.C. § 203(a)(3) (restricting exercise of termination rights to specific

five-year window).

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48 Journal, Copyright Society of the U.S.A.

crimination.”

Analysts have remarked that intellectual property law

and policy works as a type of “rent,” which “play[s] a critical role in the

increasing concentration of wealth among the already-wealthy few.”

As the United States grapples in this moment with the legacy of overt

and insidious racial oppression under the banner of the Black Lives Mat-

ter movement, the real question is whether the emerging new awareness of

racial inequality will reexamine inequality in the copyright regime, and

lead to real reform. This is the first article to address the impact of copy-

right terminations and formalities on Black authors. The only references

to race or color in existing legal literature on copyright termination is the

“black hole” problem of terminations.

Looking back, the fleecing of

Black artists since the birth of the music industry merits redress. Looking

forward, the time has come for real copyright reform that aligns perfectly

with notions of distributive justice, a justice that will benefit all creators

regardless of race.

The pernicious impact of copyright formalities like copyright termina-

tions and copyright registration on African-American creators also shine a

harsh and unflattering light on calls by prominent IP academics to “re-

formalize” copyright law. Copyright law until 1978 was built on a moun-

tain of technical formalities. The 1976 Copyright Act, contrary to received

wisdom did not eliminate copyright formalities. Copyright terminations

retain all the characteristics of the old, formalistic approach.

As Professor Tehranian has noted, “[c]opyrighted works are effec-

tively placed into a hierarchy of care that in many ways safeguards cre-

ators less vigorously than regimes in other countries. At its core, the

current system privileges the interests of repeat, sophisticated, and monied

rights holders — rights holders who are invariably also users of content.

And it does so at the expense of smaller, less sophisticated creators and

Calvin Schermerhorn, Why the Racial Wealth Gap Persists, More Than 150

Years After Emancipation,

ASHINGTON

OST

(

June 18, 2019), https://

www.washingtonpost.com/outlook/2019/06/19/why-racial-wealth-gap-persists-

more-than-years-after-emancipation. https://www.washingtonpost.com/outlook/

2019/06/19/why-racial-wealth-gap-persists-more-than-years-after-emancipation.

Steven M. Teles, The Scourge of Upward Redistribution, 46

ATIONAL

F-

FAIRS

(2015), https://www.nationalaffairs.com/detail/the-scourge-of-upward-redis-

tribution /publications (noting the increasing importance of intellectual property in

generating equality . . . .”).

“A “black hole” occurs when a work does not come within the termination

rights pursuant to either § 304 or § 203.” Stephen K. Rush, A Map Through the

Maze of Copyright Termination: Authors and Heirs Can Recapture Their Valuable

Copyrights (2018), https://nvlawllp.com/wpcontent/uploads/2018/05/A-Map-

Through-the-Maze-of-Copyright-Termination.pdf.

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The Future Is Now 49

authors.”

Given the inequality fostered by copyright doctrine and pol-

icy, debates over copyright reform must address the disparate and nega-

tive treatment of Black artists, the innovators and architects of the

American music recording industry.

I. THE RISE OF HIP-HOP MUSIC TO GLOBAL DOMINANCE

In contrast to the rural origins of the blues, hip-hop music emerged in

the 1970’s in the South Bronx of New York.

The innovation of Hip-hop,

which emerged from the most marginalized people in America, was built

on earlier blues traditions, including spoken words over music. Both blues

and hip-hop artists were legally underrepresented and poorly resourced.

In the looming battle for copyright recapture, this group of disadvantaged

creators now faced off against a highly sophisticated music industry appa-

ratus that existed above all to acquire and retain all rights to copyrighted

creative work.

Today, hip-hop music, also known as rap music, is by far the most

popularly consumed music in American culture.

Hip-hop is also an in-

ternational phenomenon. Hip-hop drives American culture, dominating

music, fashion, film, television and advertising.

The pioneering rappers

of the late 1970s and early 1980s could little have imagined a world where

one of their cohorts would receive a Pulitzer Prize, as rapper Kendrick

Lamar did in 2018, or be feted at Harvard University for contributions to

American culture, as rapper Queen Latifah was in 2019.

John Tehranian, The EMPEROR Has No Copyright: Registration, Cultural Hi-

erarchy, and the Myth of American Copyright Militancy, 24

ERK

. T

ECH

. L.J. 1399,

1401 (2009).

The ascent of hip-hop music is often tied to a “‘block party’ in the West Bronx

on Aug. 11, 1973, where a Jamaican-born resident, Clive Campbell — known as

DJ Kool Herc — debuted a new style of D.J.-ing. He extended the “breakbeat” of

a song by playing copies of the same record on two turntables. The technique had

a great effect on dancers at urban parties, who invented breakdancing to go along

with the new beats.” Laure Fouquet, Tracing Hip-Hop’s Phenomenal Rise,

ORK

IMES

(

July 23, 2015). https://www.nytimes.com/2015/07/24/arts/interna-

tional/tracing/hip-hops/phenomenal-rise.htm.

See Elias Leight, Hip-Hop Continued to Dominate the Music Business in 2018,

OLLING

TONE

AGAZINE

(

Jan. 3, 2018), http://www.rollingstone.com/music/mu-

sic-news/hip=hop-continued-to-dominate-the-music-business-in-2018-774422 (not-

ing thatxxxx rap songs, “like rap albums experienced major growth in popularity,

rising to account for 2.7 percent of all album consumption.’

See Max Berlinger, How Hip-Hop Fashion Went from the Streets to High Fash-

ion,

NGELES

IMES

(

Jan. 26, 2018), How hip-hop fashion went from the

streets to high fashion (noting that “hip-hop players such as Nicki Minaj, Drake,

Cardi B, Pharrell and others now dictate major pop-culture and fashion trends.”).

See Harvard Awards Queen Latifah Medal for Contributions to Black History,

Culture Queen Latifah to Receive Harvard Black Culture Award,

U.S.A. T

ODAY

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50 Journal, Copyright Society of the U.S.A.

Arising in the 1970’s from the bombed-out shell of the South Bronx

(where this author spent much of his childhood), hip-hop reigns as the

dominant cultural, and from a music industry standpoint, economic para-

digm in the United States, with strong international reach as well.

recent acquisition by a major corporation, Hasbro, of the defunct Death

Row Label’s

music catalogue for hundreds of millions of dollars, put an

exclamation point on the value of the old-school hip-hop catalog’s status

as an economic juggernaut.

No clear line of demarcation line marks where “old school” hip-hop

music begins and ends. For purposes of this article, the earliest period of

old-school or classic hip-hop is located from the late 1970’s to the mid-

1980’s. In that era, artists like Kurtis Blow

, Kool Moe Dee, Salt ‘n’

Peppa, Eric B. and Rakim, M.C. Lyte ruled the charts. The rappers Run-

(

Oct. 23, 2019), https://www.usatoday.com/story/entertainment/celebrities/2019/10/

23/queen-latifah-recognized-harvard-contributions-black-history/4071967002.

See TM Brown, The Greatest Hip-Hop Songs from Around the World,

BBC

USIC

(Oct. 15, 2019), https://www.bbc.com/culture/article/20191016-the-greatest-

hip-hop-songs-from-around-the-world.

Death Row Records emerged in the early 1990’s as the preeminent record

label producing “gansta’” rap music with iconic artists like Tupac Shakur, Snoop

Dogg, Nate Dogg and Dr. Dre. See Luchina Fischer, The Rise and Fall of Death

Row Records, ABCNews (Jan. 8, 2009), https://abcnews.go.com/Entertainment/

SummerConcert/story?id=5406064&page=1 (noting that Death Row Records was

“co-founded in 1991 by controversial music mogul Marion “Suge” Knight [and

became] home to some of the biggest names in rap — Dr. Dre, Snoop Dogg and

Tupac Shakur — and became one of hip-hop’s most influential and profitable la-

bels in its ‘90s heyday). In 2006, Death Row under its founder and president

Marion “Suge” Knight declared bankruptcy, and in 2008, Death Row Records and

its music catalog were auctioned in a bankruptcy sale for $24 million. See Death

Row Records Auctioned for $24 Mil.,

OLLYWOOD

EPORTER

(July 14, 2008),

https://www.hollywoodreporter.com/news/death-row-records-auctioned-24-115607.

See David Evon, Did Hasbro Toys Acquire Death Row Records?,

NOPES

(Aug. 26, 2019), https://www.snopes.com/fact-check/hasbro-toys-death-row-records

(noting that the “toy company Hasbro acquired the British company Entertain-

ment One for $4 billion in August 2019. In addition to getting access to children’s

programs such as ‘Peppa Pig’, Hasbro also now owns Death Row Records’ cata-

log.”). Entertainment One spent $280 million to purchase the Death Row catalog

in 2013. See Kristen Willis, Here’s Why Jokes Are Flying About Suge Knight’s

Death Row Records and My Little Pony.

TLANTIC

LACK

TAR

(

Aug. 26, 2019),

https://atlantablackstar.com/2019/08/26/heres-why-jokes-are-flying-about-suge-

knights-death-row-records-and-my-little-pony/ (“Now the label that was famous

for signees like Tupac and Snoop Dogg, as well as co-founder Dr. Dre, is aligned

with the same brand that brought families Monopoly and kids, Mr. Potato Head.”.

Kurtis Blow was the first solo rap artist to reach gold sales status. See Michael

Saponara, 40 Years of ‘The Breaks’: Kurtis Blow Remembers the ‘Dream World’

Surrounding Rap’s First Gold Hit,

ILLBOARD

(June 14, 2020), https://

www.billboard.com/articles/columns/hip-hop/9401176/kurtis-blow-the-breaks-

anniversary.

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The Future Is Now 51

DMC dominated the era. This was the so-called “golden age” of hip-hop,

and continued through the early to mid-1990’s.

Notable from this period was the cornucopia of remarkable women

rappers. These included Roxanne Shante, Salt ‘n’ Pepa, Lil’ Kim, MC

Lyte, Queen Latifah, and Missy Elliot. There was no shortage of rap

groups with outstanding offerings, including Getto Boys, Too Short, De La

Soul, Tribe Called Quest, Public Enemy, Heavy D, the Fat Boys, NWA,

Snoop Dogg, Dr. Dre, and many others. The two stand-out rappers of that

era, almost universally agreed, were Tupac Shakur and Biggie Smalls.

With all the great music, came the shadow of copyright. Many of these

listed artists ended up in copyright litigation. Hip-hop was always in the

shadows.

These old-school hip-hop artists paved the way for today’s rap artists,

who continue to borrow heavily from the old-school innovations. Old-

school hip-hop is critically acclaimed. A poll of music critics picked eigh-

teen of the twenty-five greatest rap songs from the period of 1979 to 1995

as the best of hip-hop.

Many music critics wax poetic over the “Golden Age” of rap—as one

noted, “[f]rom 1979 to its pinnacle golden era in the mid-1990s, hip-hop

experienced a meteoric rise to popularity . . . the golden era was filled with

lyrical mastery, innovation in beat production, diversity in style and con-

tent, and a push toward popular media.”

Given the tremendous use of

hip-hop across the spectrum of entertainment and advertising, and the

profitability digital streaming, the actual and potential value of these

works in the aggregate is staggering.

II. BEFORE COPYRIGHT TERMINATIONS—THE DRAGON OF

ACT

It has been said that copyright formalities are dead after the Berne

Convention revisions to U.S. Copyright law. Nothing could be further

from the truth.

The copyright recapture provisions, old and new, are rife

with technical and formalistic mechanisms. These mechanisms have huge

Brown, supra note 24.

Christopher Vito, Just Say No to 360s: Hip-Hop’s Claim of Economic Exploita-

tion,

PRINGER

(Feb. 2, 2019), https://link.springer.com/book/10.1007/978-3-030-

02481-9.

In 2019, the U.S. Supreme Court held that a completed copyright registration

is a requirement to institute a copyright infringement suit in federal court, a deci-

sion which essentially reinstates registration as a formality. Fourth Estate Pub.

Benefit Corp. v. Wall-Street.com, 139 S. Ct. 881 (2019.) And publication is still a

critical component in the copyright termination provisions and the provisions on

statutory damages and attorney’s fees.

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52 Journal, Copyright Society of the U.S.A.

substantive effects on who ends up owing creative works subject to termi-

nation. Copyright recapture under the termination provisions does not oc-

cur automatically, but rather requires artists to take very specific and

highly technical steps and actions. The termination procedures, like the

heed and properly execute these formal procedures. Whether by neglect

or mistake, if artists fail to act seasonably and diligently, their right to

recapture, the only inalienable right under copyright law, is irrevocably

lost.

The roots of the 1976 Copyright Act’s provisions on copyright termi-

nations lie in the predecessor 1909 Copyright Act. Under the 1909 Act,

which remained in effect until 1978, copyright authors received two inde-

pendent twenty-eight terms of copyright for a total of fifty-six years.

Under the 1909 Act, to receive the additional twenty-eight years under the

renewal regime, the copyright claimant had to formally apply for copyright

renewal.

The renewal provisions of the 1909 Act caused all manner of difficul-

ties for copyright owners, individual authors, and corporate owners. A

eight-year renewal provision in a timely manner led to the work being

dedicated to the public domain under the 1909 renewal provisions.

These formalities were a common feature of the 1909 Copyright Act. Fail-

ure to comply with copyright formalities like registration, notice and publi-

cation resulted in loss of copyright ownership. Under the obtuse renewal

regime even large corporate entities like Fox Television botched attempts

to exercise renewal rights.

If copyright owners failed to renew timely

under the 1909 Act the work was injected into the public domain, a work

free for the public to use.

The idea that renewal would provide benefits to artists was soon

proved mistaken. First, the cantankerous renewal procedure was sparsely

used by authors. A large percentage of eligible works were never re-

newed.

Second, the U.S. Supreme Court eviscerated the value of the

See Copyright Act of 1909, Pub. L. No. 60-349, § 23, 35 Stat. 1075, 1080 (1909).

See Id.

See Edward Samuels, The Public Domain in Copyright Law, 41

J. C

OPYRIGHT

’

137 (1993). In 1992, Congress eliminated the renewal requirement even for

works created before 1978.

Fox’s failure to renew the 1943 television series Victory at Sea resulted in a

lawsuit before the U.S. Supreme Court when Fox, having failed to retain copyright

by renewal, attempted to protect its rights by suing Dastar for trademark infringe-

ment for repacking the film footage and distributing it under a different title. See

Dastar Corp. v. Twentieth Century Fox Film Corp., 539 U.S. 23 (2003).

See William M. Landes & Richard A. Posner, Indefinitely Renewable Copy-

right, 70 U.

. L. R

. 471, 473 (2003) (noting that “fewer than 11 percent of the

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The Future Is Now 53

renewal right. It held that artist could sign away the renewal term for

copyrighted works.

The Supreme Court case of Fred Fisher Music in-

volved the renewal term in the song When Irish are Smiling. In blessing

the assignment of renewal terms by contract the court ironically, perhaps

comically, endorsed coercive assignment of artist renewal rights. At the

same time, the Court commented that coercive assignments of artist re-

newal terms could make the courts “instruments of injustice by lending

their aid to the enforcement of an agreement . . .. under such coercion of

circumstances that enforcement would be unconscionable.”

The Supreme Court then proceeded to enforce the assignment of re-

newal terms under the rubric of freedom of contract. The Fisher decision

was contrary to the congressional policy underlying the 1909 Copyright

Act renewal provision. The decision harmed those authors who lacked

bargaining authors power because the economic value of their work had

yet to be proven, the class of authors the renewal provisions were enacted

to protect.”

III. THE 1976 COPYRIGHT ACT REVISIONS AND THE BIRTH

OF SECTION 203

The revisions that led to the Copyright Act of 1976 involved decades

of negotiations between various constituents in the copyright industries.

These included music and book publishers, record labels, radio stations as

well as music composers and writers. Professor Litman’s work masterfully

analyzed the lengthy negotiations leading up to the 1976 Copyright Act.

This task illuminated the legislative history of the 1976 Act. Professor Lit-

man noted that the language of the Act “evolved through a process of

negotiation among authors, publishers, and other parties with economic

interests in the property rights the statute defines.”

As Professor Litman notes, in 1955, the Copyright Office formed ad-

visory panels to decide how to revise the renewal provisions of the 1909

Act. The advisory panels “eventually swelled to include ‘more than a hun-

dred persons, representing almost everyone who had any real interest [in

the subject of copyright reversion/recapture].”

Thus, a relatively small

twenty-eight-year term, even though the cost of renewal was small.”).

Fred Fisher Music Co. v. M. Witmark & Sons, 318 U.S. 643, 657-68 (1943)

(holding that authors can assign away their interest in the second 28-year copyright

renewal term).

Id.

Note, The Errant Evolution of Termination of Transfer Rights and the Deriva-

tive Works Exception, 48

HIO

TATE

J. 897, 900 (1987).

See Jessica D. Litman, Copyright Compromise and Legislative History, 72

OR-

NELL

L. R

857, 861.

Id., at 872.

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54 Journal, Copyright Society of the U.S.A.

group of copyright industry insiders decided the fate of the vast majority

of artists.

The detailed work of Professor Litman showed that the legislative

process behind the copyright termination provisions was a tortured com-

promise. Record labels and publishers wanted copyright terminations to

be difficult. Various interest groups fought for position and robustly de-

bated over the contours of copyright recapture.

However, IP legal scholars have not examined this reality: African

American creators were excluded from the decades-long negotiations over

separated from the cross-currents of race and identity. In 1909, as the

NAACP was formed in response to lynching’s across America, an all-white

Congress enacted a sweeping new copyright act, the 1909 Copyright Act,

without input from the African-American creators. Meanwhile, all indica-

tions pointed to a Copyright Office that was rife with gender and racial

discrimination.

The legislative negotiations for what would become the 1976 Copy-

right Act began in 1955. In 1955, when Congress decided to revise the

1909 Copyright Act, segregation was still rampant in America. Emmett

Till, a fourteen-year-old boy, was lynched in Mississippi.

Rosa Parks re-

fused to give up her seat on a bus. Dr. Martin Luther King was leading the

Montgomery Bus Boycott.

In the music scene, rock ‘n’ roll pioneer

Chuck Berry released his hit Maybellene on the Chess Record Label —

and only in 1986 was he listed as the sole composer.

There is no evi-

Id. at 888-93 (describing negotiations over work made for hire treatment, re-

newal, and termination for the 1976 Act).

“In 1971, then Registrar Abraham Kaminstein announced his retirement, and

[Barbara] Ringer applied for the position but was passed over for a male col-

league. She sued the Librarian of Congress on that the position had been denied

to her because she was woman and because she had advocated for African-Ameri-

cans who were being discriminated against in the Library of Congress.” Ringer,

who went on to become the first woman Registrar of Copyrights prevailed on her

claims. Rachel Kim, Celebrating Women in Leadership at the Copyright Office,

OPYRIGHT

LLIANCE

(Mar. 8, 2018), http://www. Copyrightalliance.org.

See Abby Callard, Emmett Till’s Casket Goes to the Smithsonian,

MITHSO-

NIAN

. (Nov. 9, 2009), https://www.smithsonianmag.com/arts-culture/emmett-

tills-casket-goes-to-the-smithsonian-144696940.

See

ARTIN

UTHER

ING

, J

. R

ESEARCH AND

DUCATION

NSTITUTE

https://kinginstitute.stanford.edu/encyclopedia/montgomery-bus-boycott (last vis-

ited May 19, 2021).

Although Berry was the sole composer of the song, when he “finally got his

hands on a copy of the record, he saw he was listed as only one of three songwrit-

ers. Alan Freed, the disc jockey who had so aggressively promoted the song, was

another. The third was Russ Fratto, a man he’d never heard of. Trading credit for

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The Future Is Now 55

dence that any African-Americans participated in these legislative negoti-

ations. African Americans were deprived of the opportunity to add their

insights, objections or long-standing experiences of copyright deprivation

to the debate on copyright revision.

The exclusion of African-American creators from the levers shaping

industry African-American creators innovated virtually every musical

genre that fueled the music industry subsists on. In a word, Black artists

and innovators ARE the American music industry. The glaring absence of

the interests of these artists in shaping the process raises serious questions

about its legitimacy, particularly when there was and is a huge gap be-

tween the contributions of African-American artists and their reward

under copyright law.

The copyright termination provisions came out of a long process of

fected by copyright revision took their places at the table. All that is, ex-

cept one group with an outsized interest, even if they didn’t know it —

African-American artists. The process was unrepresentative, and the legal

academy of scholars have also failed to address its implications. The stark

exclusion of African-American creators is dissonant, given their contribu-

tion to music industry revenues. Because of institutional racism, a group

with a massive stake in issues of copyright protection, ownership and re-

capture had no input regarding how the new Copyright Act should look.

Black creators, a group ravaged by the 1909 Act, had no opportunity to

improve it.

IV. THE 1976 COPYRIGHT TERMINATION PROVISIONS: A

FIGHT AGAINST “UNREMUNERATIVE TRANSFERS”

The 1976 Act eliminated the bifurcated fifty-six-year term of duration

in the 1909 Act, replacing it with a unitary term of life of the author plus

fifty years.

For corporate owners, the 1976 Act established a duration of

seventy-five years from date of creation.

The new 1976 Act eliminated

the renewal provision of the old 1909 Act and replaced renewal with the

airplay, known as payola, was a common practice at the time, especially when the

song was by a black artist.” See Jesse Wegman, The Story Of Chuck Berry’s

‘Maybellene’, NPR (July 2, 2000), https://www.npr.org/2000/07/02/1076141/

maybellene.

See 17 U.S.C. §302 (1976 version) (providing for a copyright term of life plus

50 years).

See id.

The 1999 Copyright Term Extension Act (“CTEA”) added on twenty years of

additional copyright protection for individuals. The CTEA changed the duration

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56 Journal, Copyright Society of the U.S.A.

Congress stated that the purpose of the termination provisions was to

give authors/creators a second chance of realizing the value of and mone-

tizing their works.

Congress recognized that artists are generally unso-

phisticated and would occupy a poor negotiating position in initial

contracts with music publishers and record labels. Remarkably, the copy-

right recapture provisions are the only in place in the entire Copyright Act

that expressly recognize inequality, as well as the unfavorable bargaining

position authors/creators are in at the outset of their career when the deals

are being signed.

At the time of the 1976 Act copyright revisions, the Register of Copy-

rights was particularly concerned about what he called “unremunerative

transfers.” These are transfers by unsophisticated artists to larger entities

like record labels and music publishing companies.

For this reason, Con-

gress made the right to terminate and recapture copyrights inalienable.

The 1976 Copyright termination provisions rebuked the Fred Fisher Music

case, where the Supreme Court held that authors could sign away their

renewal term.

The Register of the Copyright’s “major concern about lengthening

the renewal term was that authors should benefit from it.”

In hindsight,

this concern seems ironic, given how terrible the copyright termination

provisions resulted for authors. Professor Litman, a leading copyright

scholar, recognized the complex mechanics of the termination provisions

make the termination right “largely illusory.”

V. THE TORTURED MECHANICS OF COPYRIGHT

TERMINATIONS UNDER 17 U.S.C. § 203

Scholars unanimously agree that the copyright termination provisions

are unwieldly and overly complex. The complexity of the provisions

for corporate works to either ninety-five years from publication to one hundred

twenty years from creation. Pub. L. No. 105-298, 112 Stat. 2827 (1998) (amending

17 U.S.C. §§ 301–304).

See Chase A. Brennick, Termination Rights in the Music Industry: Revolution-

ary or Ripe for Reform?, 93 N.YU.

L. R

. 786, 788 (2018) (noting that [w]hen

Congress created the termination right, it intended to give authors a second chance

after having made a disadvantageous deal, either because of the author’s lack of

bargaining power or inability to foresee the work’s potential market value.”).

See Pamela Samuelson, Notice Failures Arising from Copyright Duration

Rules, 96

. U. L. R

667, 679 (2016) (noting that the “Register remained firm

about the need to protect authors against unremunerated transfers which had

proven to be the ‘the most explosive and difficult issue’ of the copyright revision

process.”).

See 17 U.S.C. § 304(c)(5) (2006); see also Stewart v. Abend, 495 U.S. 207, 218

(1990).

Samuelson, supra note 49, at 673.

Jessica Litman, Real Copyright Reform, 96

OWA

L. R

1, 36 (2010).

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The Future Is Now 57

presents “a daunting challenge to an author or successor looking to termi-

nate.”

To further cloud matters, “[d]espite being law for almost four

decades, the terminations of transfer provisions of the

[1976

Act have led to limited jurisprudence to date.”

However, legal scholars

have not widely considered the deleterious copyright termination conun-

drum as it impacts African-American artists and those similarly situated to

them. As I have stated elsewhere, African-American creativity and inno-

vation are the laboratory of intellectual property, both shaping IP and be-

ing (typically) adversely impacted by IP formalities such as termination.

Under the 1976 Copyright Act recapture provisions in section 203, an

artist who has transferred her rights to an entity such as a record label or

music publishing company can, in theory, reclaim those rights thirty-five

years from the date of the transfer/grant or forty years from the date of

publication. To recapture, the artist must draft a notice (actually a set of

notices) perfect in form and content, serve that notice on the transferee,

and record the notice in the U.S. Copyright Office.

Artists must serve notices of copyright termination on transferees be-

tween no more than ten and no less than two years before the effective

date of termination.

This I s one set of the copyright termination’s “win-

dows.” Another window is a five-year period after the termination date.

The copyright termination provisions set forth who is eligible to terminate

The general formula states “the author, if living, is

the person eligible to exercise a termination interest.”

The termination

right is also descendible: “if the author is deceased, the termination inter-

est will be divided among the author’s widow or widower, children and

grandchildren.”

The complexity of the termination process is mind dizzying, including

correctly selecting the date in which the grant can be terminated. Sepa-

rate, and even more complex rules, apply to works by joint authors and

derivative works.

And questions abound about what works can, and

cannot be terminated. At the outset, copyright terminations require strict

R. Anthony Reese, Termination Formalities and Notice, 96

B.U. L. R

. 894,

898 (2016).

Robert Meitus, Commentary: Revisiting the Derivative Works Exception of the

IP T

HEORY

60, 71 (2005).

See 17 U.S.C. § 203(a)(4) (prescribing how termination may be effected).

See id. § 203(a)(4)(A).

See id. § 203(a)(3).

See id. § 203(a)(1)-(2).

See

HELDON

W. H

ALPERN

, H

OWARD

BRAMS

& D

AVID

E. S

HIPLEY

, C

OPY-

RIGHT

: C

ASES

& M

ATERIALS

587 (1992); see also 17 U.S.C. § 203(a)(1)-(2) (speci-

fying those entitled to exercise termination rights).

See 17 U.S.C. § 203(a)(1) (specifying how joint authors may exercise termina-

tion rights).

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58 Journal, Copyright Society of the U.S.A.

attentions to various dates: “the most basic analysis of whether a trans-

ferred copyrighted work is eligible for termination requires four main

dates:

1. the date of the work’s creation;

2. the date of the work’s publication (if applicable);

3. the date of copyright registration (if applicable); and,

4. the date of the transfer or assignment.”

So much for the notion that copyright formalities of publication and

registration are dead!

The Code of Federal Regulations (“CFR”) in § 201.10 sets forth pro-

cedures for issuing copyright termination notices. However, and unbeliev-

ably, the U.S. Copyright Office “does not provide printed forms for the

use of persons serving notices of termination” required by the CFR.

But

it does set forth the requirements in five dense pages, covering notice pro-

cedures for terminations under the 1909 and 1976 Copyright Act Termina-

tion provisions. The Copyright Office does provide Form TCS (Notice of

Termination Cover Sheet) for recordation of copyright termination notices

with the Copyright Office.

The form itself is invalid if it fails “to comply

with Copyright Act’s statutory requirements . . . and the Office’s regula-

tions . . . and instructions.”

If a party incorrectly files the notices, the

outcome could be catastrophic, requiring a re-do that could result in the

windows closing.

Professor Reese, the uncontested academic king of copyright termina-

tion law, has outlined the many steps that an author, at a minimum, is

required to follow, and it is revelatory:

“• identify who holds the right to terminate, and,

• if the right is held by multiple parties, identify and correctly com-

pute their proportionate shares, and get the holders of more than

one-half of the shares to agree to terminate;

• calculate the time period during which termination can occur and

choose an effective termination date in that period;

• calculate the time period during which advance notice must be

served on the party whose rights are being terminated;

• identify and locate the party on whom the advance notice must

be served; and

Julia Wu & Eric Malmgren, Grappling with the Most Notoriously Complex

Provision in U.S. Copyright Law,

UTHORS

LLIANCE

(Oct. 26, 2017), https://

www.authorsalliance.org/2017/10/26/grapplingwith-the-most-notoriously-complex-

provision-in-u-s-copyright-law/.

37 CFR §201.10 (2021).

Form TCS, https://www.copyright.gov//formtcs.pdf.

Id.

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The Future Is Now 59

• draft a proper termination notice, serve it properly, and record a

copy of it in the U.S. Copyright Office before the effective date.”

Each of these steps is fraught with the potential for missteps. Inher-

ent in the copyright termination provisions are some preposterous as-

sumptions. The provisions presuppose that an author, in the music

business, typically a twenty-something year old, would plan ahead thirty-

five years into the future at the time of signing a contract transferring her

copyrights. The provisions imagine 20-something artists, unsophisticated

in contracts and copyright, looking far ahead and calendaring dates deep

into the future.

A practical but critical issue that often arises (but one that is not dis-

cussed in academic literature) is the conundrum of finding the original

transfer contract, which is needed to effectuate copyright terminations.

Every termination is based on the “grant”, that is the contract, transferring

ownership to a music publishing or record label. What if the artist cannot

locate the original transfer contract? I encountered this very issue last

year in attempting to help one of the most iconic 1980’s-era rap groups

pursue copyright recapture. Typically, a sophisticated transferee such as a

record label or major music publishing company would retain copies of all

contracts and transfers of copyright. But in the early hip-hop industry,

many independent record labels and publishers kept far from immaculate

records, begging the question: what if no one can find the original con-

tract/transfer, or the music publisher refuses to convey the original trans-

fer agreement?

In the 1980’s and ‘90’s, many labels sprang up that were not well-

managed, and the original contracts were not easy to find. Perhaps worse,

there is evidence that some of the hip-hop labels of that era (as in other

eras) behaved in horribly unethical ways.

History shows that even labels

See R. Anthony Reese, Termination Formalities and Notice, 96

. L. R

895, 898 (2016).

Naima Cochrane, Industry Rule No. 4080: Are Bad Record Deals Unethical, Or

Just Part of the Game?,

ILLBOARD

AGAZINE

(Feb. 6, 2020), https://

www.billboard.com/articles/columns/hip-hop/8550339/badrecord-label-deals-mase-

kelis-90s (The singer “Kelis said she was “blatantly lied to and tricked” by “the

Neptunes and their management and their lawyers and all that stuff” when she

signed her initial deal. The ‘Milkshake’ singer says she was told: “[we] were going

to split the whole thing 33/33/33.” When she realized she wasn’t making any

money off of her albums, only her touring, she says she questioned her deal. “Their

argument is: ‘Well, you signed it.’ I’m like: ‘Yeah, I signed what I was told, and I

was too young and too stupid to double-check it.’”).

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60 Journal, Copyright Society of the U.S.A.

owned and operated by African Americans treated artists no better than

white-controlled labels and did not advance racial empowerment.

Even more troubling, if an artist cannot locate the contract that trans-

fers copyright, there is no formal provision or mechanism requiring a re-

cord label or publishing company to turn over the transfer. If a label or

music publisher, for example, declined to provide a copy of the original

transfer, the artist could pursue a declaratory judgment action in federal

court. But these actions are very expensive and beyond the means of ordi-

nary people. And in the Ninth Circuit, at least, if the artist does not pre-

vail on the declaratory judgment action, she could be liable for paying the

defendant’s attorney’s fees.

This author has often joked that if Congress

had wanted to devise a copyright termination mechanism that would virtu-

ally ensure most authors could never recapture their rights, Congress

could have done little better than section 203 and its companion sections.

The copyright recapture provisions were fashioned by special interest

groups, led by corporate entities like record labels and film studios. This

dynamic reflects that “many of the most powerful forms of upward-redis-

tributing rent-seeking take place in obscure decision-making contexts.”

The termination provisions that emerged from that context were unreflec-

tive of a major constituent group, African-American music artists, who

have powered the music industry from its inception. The dynamics of race

and class in America augur that Black artists are likely to be dispropor-

tionately hurt by the termination provisions, but they are not alone.

Despite the ability of artists to terminate rights in songs and sound

recordings since 2013, “[t]he stampedes of recording artists seeking to

regain control of their sound recordings that many thought would flood

the courts has not come to pass; or at least not of yet.”

And there is

evidence that many artists from the old-school hip-hop era and beyond are

completely unaware that a right to recapture their works even exists.

See Stuart Tully, Buying and Selling Out: African-American Ownership of Re-

cord Labels in the Twentieth Century,

LSU D

IGITAL

OMMONS

(2016) (contending

that “black-owned record labels ultimately became indistinguishable from any

other label, and demonstrate the futility of believing racial uplift can come through

a consumer enterprise.”).

See Doc’s Dream, LLC, v. Dolores Press, Inc., No. 18-56073, (9th Cir. May 6,

2020) ( holding that attorney’s fees as provided for under the Copyright Act apply

to declaratory judgement actions).

Teles, supra note 17.

See Tuneen Chisolm, Whose Song is That? Searching for Equity and Inspira-

tion for Music Vocalists Under the Copyright Act, 19

ALE

J. L. & T

ECH

. 274, 323

(2018).

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The Future Is Now 61

VI. FROM MOVIES TO SOUND RECORDINGS: AT GROUND

ZERO OF “BATTLEGROUND TERMINATION”

Hollywood screenwriters of hit motion pictures have initiated copy-

right terminations that have the potential to impact the bottom line of

major record labels and film studios.

Unlike most blues and hip-hop artists, screenwriters tend to be more

sophisticated and conversant with legal devices. Motion pictures are works

made for hire, and are one of the nine categories listed in the Copyright

Act that are not subject to termination.

Because motion pictures are

works made for hire, producers, directors, actors and others involved in

motion picture production can never seek copyright recapture for these

works. However, in contrast to the movie itself, a motion picture script is

literary work or work of performing arts that can be terminated under the

A screenwriter of the hit film “Nightmare on Elm Street” successfully

exercised termination rights to the script in a decision affirmed in federal

court.

Screenwriters for other hit movies are also effectuating termina-

tion notices for films such as Beetlejuice, Die Hard, Who Framed Rodger

Rabbit, and the The Terminator.

The rash of movie screenplay termina-

tions “threatens to unsettle who owns the ability to make sequels and

reboots of iconic films from the mid- to late-’80s.”

Movie industry peo-

ple, including screenplay writers, are typically more sophisticated than hip-

hop artists in copyright matters.

On the music side, copyright terminations have become a battle-

ground between record labels seeking to retain sound recordings, and art-

ists seeking to recapture those works. By long-standing custom and

practice, record labels “take the position that as a matter of law, all sound

recordings (also known as ‘masters’) created during the term of the con-

tract fall within the subject matter and scope of the exclusive recording

See 17 U.S.C. § 203(a) (excepting works made for hire from termination).

See Michael Henry Davis, The Screenwriter’s Indestructible Right to Terminate

Her Assignment of Copyright: Once a Story is ‘Pitched’ a Studio Can Never Obtain

All Copyrights in the Story, 18

ARDOZO

RTS

& E

. L.J.

93 (2000).

Horror, Inc. v. Victor Miller, Case 3:16-cv-01442-SRU (D. Conn. Oct. 9, 2018).

Jeff Sneider, Studios May Lose ‘Die Hard,’ ‘Terminator,’ ‘Beetlejuice’ Rights as

Authors Cite Copyright Law,

OLLIDER

(Oct. 2, 2019), https://collider.com/termi-

nator-die-hard-beetlejuice-rights-may-revert-toauthors-under-law.

Eriq Gardner, Real-Life ‘Terminator’: Major Studios Face Sweeping Loss of

Iconic ‘80s Film Franchise Rights,

OLLYWOOD

EPORTER

(Oct 2, 2019), https://

www.hollywoodreporter.com/thr-esq/real-life-terminatormajor-studios-face-

sweeping-loss-iconic-80s-film-franchise-rights-1244737.

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62 Journal, Copyright Society of the U.S.A.

agreement and shall be deemed to be property of the label from the mo-

ment of fixation.”

Major label record industry contracts routinely and as a matter of cus-

tom and practice specify that the artist creative output is a work made for

hire, and that alternatively, if found not to be a work made for hire that

the able artist transfers and assigns all rights to the record label.

Profes-

sor Yen points out that there are a number of ways for rightsholders to

evade copyright termination through what might be called “creative” con-

tracting methods.

Nonetheless, music artists are fighting back and pur-

suing copyright terminations. For major artists like Sir Paul McCartney

and Prince, beginning the termination process is a game that leads, invari-

ably, to a seat at the table to renegotiate a new and better deal.

But

major labels are vehemently resisting the termination efforts of lesser art-

ists, as illustrated by a pair of class action lawsuits by artists against both

Universal Music Corp. and Sony Music Corp.

Ground zero of the battle is whether sound recordings are terminable

under section 203 of the Copyright Act. In several lawsuits, the class of

plaintiffs allege that “while the Copyright Act confers upon authors the

valuable ‘second chance’ that they so often need, the authors of sound

See Hector Martinez, Cash from Chaos: Sound Recording Authorship, Section

203 Recapture Rights and a New Wave of Termination, 4

ACE

NTELL

. P

ROP

PORTS

& E

NTER

. L. F

ORUM

445, 459 (2014) (contending that “any key member of

recording artist that signed the recording contract is a bona fide author of a sound

recording for purposes of claiming standing in order to effectuate a termination of

transfer of grant under Section 203 of the 1976 Copyright Act”).

See Kathryn Starshak, It’s the End of the World as Musicians Know It, or Is It?:

Artists Battle the Record Industry and Congress to Restore Their Termination

Rights in Sound Recordings, 51

AUL

L. R

71, 111 (2001) (noting that “re-

cord companies [frequently] will attempt to ensure that the artist’s recordings are

the property of the company by including provisions in the contract that the re-

cordings are being created on a work-for-hire basis.”).

See Alfred C. Yen, Private Ordering and Notice Failure in the Context of Ter-

mination, 96

. U. L. R

. (2016). Professor Yen notes “that a party could

acquire the copyright to a work and evade termination using two kinds of writings.

The acquiring party could ask the author to agree explicitly to work made for hire

treatment on the premise that she is an employee who will, or did, create the work

while acting within the scope of her employment. Alternatively, an acquirer could

ask the author to recite that the work is a Special Work and agree to work made

for hire treatment.”

McCartney sued Sony/ATV in 2017 to recapture rights in compositions sold to

Michael Jackson, and subsequently acquired by Sony. Sony soon capitulated, and

the parties settled the issue on terms apparently satisfactory to all parties. See Paul

McCartney Finally ‘Gets Back’ His Beatles Copyrights,

ACE

NTELL

. P

ROP

PORTS

& E

. L. F

ORUM

(Oct.29, 2018), https://pipself.blogs.pace.edu/2018/10/29/

paulmccartney-finally-gets-back-his-beatles-copyrights

See Waite v. UMG Recordings, Inc., case no. 1:19-cv-01091 (S.D.N.Y. July 13,

2020).

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The Future Is Now 63

recordings . . . who have attempted to avail themselves of this important

protection have encountered not only resistance from many record labels,

they have been subject to stubborn and unfounded disregard of their

rights under the law. . .and willful copyright infringement.”

The class of

plaintiffs allege that record labels like Sony and Universal Music Group

“routinely and systematically refuse to honor [termination notices].”

At the epicenter of battleground termination are sound recordings.

Composers have had success in effectuating copyright terminations. Com-

posers began the recapture process in 2014, and their first case resulted in

a resounding victory, at least on the surface. It involved the compositions

of Victor Willis, the motorcycle cop character in the 1970’s group “Village

People.” A French producer claimed to own the rights to the composi-

tions. Even worse, a co-producer, Henri Belolo registered copyrights as

the co-writer of the Village People catalog. That Village People catalog

included enormously valuable hit songs like YMCA, Macho Man., and In

the Navy. The ugly underbelly of the Village People termination case

reveals rapacious music industry practices that force artists to share copy-

right credit.

Willis sued to recapture his share of the compositions, and to remove

one of the purported co-writers, Henri Belolo. Willis prevailed in both

instances

. In 2015, a federal jury in San Diego decided that “Belolo [was]

not a joint author of thirteen of the twenty-four disputed works – includ-

ing the famous party hit “Y.M.C.A.” – and awarded Willis 50 percent of

the copyrights to those 13 songs.”

It thus seems clear that composers

who resolutely and correctly navigate the labyrinth of the copyright termi-

nation provisions will succeed in recapturing rights to songs. It also seems

clear that such success will be the exception and not the norm for most

artists. As Professor Bartow has noted, Victor Willis had a spouse who

was an attorney and “was lucky enough to have half a million dollars at his

disposal to spend on lawyers.”

Id.

See Scorpio Music (Black Scorpio) S.A., Dec 27, 2016, Case No.: 11-cv-01557-

BTM(RBB) (S.D. Cal., Dec. 27, 2016); see also Eriq Gardner, “Village People

Singer Victor Willis Breaks Silence About Copyright Lawsuit Win (Exclusive)”,

Hollywood Rptr., May 11, 2012, noting that [s]ongs by the Village People continue

to earn millions of dollars per year . . .. [and that Willis . . .. stands to benefit

significantly as his revenue share on the group’s songs could potentially increase

from 12-20 percent to 50 percent.”

See Bianco Bruno, Latest Village People Song Spat Dismissed,

OURTHOUSE

EWS

ERVICE

(

Jan. 22, 2016), https://www.courthousenews.com/latest-village-

people-song-spat-dismissed.

See Ann Bartow, Using the Lessons of Copyright’s Excess to Analyze the Politi-

cal Economy of Section 203 Termination Rights, 6

. A&M J. P

ROP

. L.

23, 30

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64 Journal, Copyright Society of the U.S.A.

cordings. In battleground termination, sound recordings are another mat-

ter entirely. As the UMG litigation shows, record labels stand ready, and

well-financed, to fight to the death to prevent the recapture of sound re-

cording. In Johansen v. Sony Music Ent., Inc., Sony posited numerous and

highly technical theories to thwart a class action copyright termination

suit.

Sony asserted that the sound recordings “are works made for hire,”

and thus not subject to termination.”.”

Sony challenged the form as well

as the timeliness of the notices. Judge Ramos rejected Sony’s arguments

on a motion to dismiss on the complaint due to lack of timeliness and

form.

Similarly, in the Universal class action suit, Universal asserted a myr-

iad of theories to obstruct termination. It is clear that the major labels

have a strategy as they make the exact same arguments in both class action

lawsuits. Labels point to contract language conveying rights in perpetuity

to the label in sound recording deals. Labels cite the work made for hire

language in sound recording contracts, arguing that works made for hire

are ineligible for termination. The Waite court rejected Universal Music’s

arguments that the class of plaintiff’s claims were time-barred under the

Major record labels also endeavor to weaponize the very act they en-

couraged artists to do in the 1970’s and ‘80’s against those artists now.

Record labels, for tax and other reasons, encouraged sound recording per-

formers to enter into “loan-out deals” to minimize risks to artist assets.

Those same labels now assert that since most recording artists in the 1970’s

and 1980’s formed loan-out companies to hold their IP and royalty entitle-

ments, the artists are not entitled to terminate their record label agree-

ments. The labels contend that since those rights were transferred—

(2020). The author notes: “[t]his termination rights saga had a happy ending for

Victor Willis but it is not at all clear that other authors will experience similar

triumphs over seasoned, well-funded corporate intermediaries anxious to retain

control over creative works and even more determined not to cut authors into the

revenue streams that these works generate.” Id. at 31.

See Opinion and Order, Johansen, et al v. Sony Music Ent. Inc,, 19 Civ. 1094

pg. 3, (ER)(S,D,N.Y. 2020), file:///C:/Users/Kevin/Downloads/Johansen%20v%20

Sony%20(2).pdf.

Id.

Waite v. Universal Music Grp., 50 F. Supp. 3d 430, 439 (S.D.N.Y. 2020).

See Tonya M. Evans, Statutory Heirs Apparent? Reclaiming Copyright in the

Age of Author-Controlled, Author-Benefiting Transfers, 119

W. V

. L. R

. 297,

322-323 (2016),

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The Future Is Now 65

ironically at the behest of labels— the labels claim that the individual per-

formers have no right to terminate.

As at least one analyst has noted, these assertions by the labels seem

specious at best. An artist who transfers her rights to another entity is

ineligible to recapture her copyright. However, “[m]any musicians set up

loan-out companies to enter into recording deals on their behalf and these

shell entities are simply agents and proxies, mere extensions of the artists

themselves. Based on accepted industry practice, [labels] cannot argue in

good faith that an artist’s loan-out company is anything other than the

artist itself.”

Record labels also assert other bases for denying terminations of

transfer. The statute of limitations is one such basis. The statute of limita-

tion for copyright claims is three years from the time the claim accrues.

The labels contend that claims contesting ownership are barred by the

statute of limitations.

This issue also arose in the Scorpio case. There,

Willis contended one of the three copyright claimants in the Village Peo-

ple catalog, “Henri Belolo, was not an author of twenty-four of the thirty-

three compositions in dispute and therefore Willis’ share is 50% for those

compositions.”

The defendants asserted that copyright’s three-year statute of limita-

tions applied to terminations, contending Willis should have pursued ter-

mination as soon as Scorpio contested ownership of the compositions.

The court rejected this argument. Now Willis, the “cop” character in the

Village People has recaptured his ownership share in songs like Macho

Man, In the Navy, and the iconic song played at weddings, sports events

and parties, YMCA. A rare victory for an African-American artist of his

era.

See Aaron J. Moss & Kenneth Basin, Copyright Termination and Loan-Out

Corporations: Reconciling Practice and Policy, 3

ARV

. J. S

PORTS

. 55, 57 (2102)

(noting that “[a]rtists who, for tax reasons, have utilized so-called “loan-out corpo-

rations” (entities by which artists “loan out” their own personal services to em-

ployers) may find that they have unwittingly nullified their own copyright

termination rights by rendering their creative efforts “works for hire, “and there-

fore ineligible for termination.”).

See Scot Alan Burroughs, Terminators, Mount Up!: Section 203 and Copyright

Recovery (Part I) (May 15 2019), https://abovethelaw.com/2019/05/terminators-

mount-up-section-203-and-copyrightrecovery-part-i.

Waite, 50 F. Supp. 3d 430.

See Pamela Chestek, Don’t Wait for Termination to Claim Copyright Owner-

ship, (Mar. 26, 2013, https://propertyintangible.com/2013/03/dont-wait-for-

termination.html.

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66 Journal, Copyright Society of the U.S.A.

VII. ACADEMIC PERSPECTIVES AND THE RACIAL DIVIDE

The racial divide reflects the gulf between whites in America and Af-

rican-Americans. Academic discourse on copyright terminations has until

recent years been bereft of any acknowledgement of the impact of copy-

right law on African-American artists. Critical analysts have posited that

the American music industry has historically functioned as “‘a colonial

system’ a colonial system because of the gross fiscal advantage and explicit

racism exacted on [African-American] artists by their record companies

and handlers.”

In fact the copyright termination provisions are just one

of what the author terms “the seven deadly sins of copyright law” that

devastated African-American creators from the 1909 Act to the present.

According to the American Bar Association’s own statistics, the legal

profession is the “least diverse of all the professions.”

The Intellectual

Property Section of the Bar is even less diverse vis- `a-vis Black lawyers, as

is the IP legal academy.

There is little doubt that this is a contributing

factor as to why IP scholars have not, until recently, analyzed issues with-

out regard to dynamics of race and gender. Indeed, no scholar has under-

taken an analysis of copyright terminations as they relate to African-

American authors.

Professors Reese and Loren have done impressive and important

work in the area of copyright terminations. However, their work does not

recognize the unique historical burdens of copyright formalities on Black

artists. For example, Professor Loren recognizes the complexity of the

experienced counsel.

100

She goes off track in this author’s view, however,

See Jennifer C. Lena, Meaning and Membership: Samples in Rap Music, 1979-

1995, 32

OETICS

297, 301 (2004).

The seven deadly sins: 1. Fixation; 2, Originality; 3. Idea-Expression; 4. Copy-

right formalities; 5. Credit deprivation; 6. False copyright registrations; 7. Hostile

judicial interpretations. David M Adler, The Seven Deadly Sins of Copyright,

https://indiefilmlaw.wordpress.com/2010/04/08/the-seven-deadly-sins-of-copyright/.

Allison E. Laffey & Allison Ng, Diversity and Inclusion in the Law: Chal-

lenges and Initiatives (May 2, 2018) https://www.americanbar.org/groups/litigation/

committees/jiop/articles/2018/diversity-and-inclusion-inthe-law-challenges-and-ini-

tiatives (“Despite the increased emphasis on diversity and inclusion within the le-

gal field over the past decade or so, the legal profession remains one of the least

diverse of any profession.”).

See J. Shontavia Johnson, Tonya M. Evans & Yolanda M. King, Diversifying

Intellectual Property Law: Why Women of Color Remain “Invisible” and How to

Provide More Seats at the Table, 10

ANDSLIDE

(2018) (noting that “[a]ccording to

American Intellectual Property Data, the IP field is overwhelmingly white and

male.”). https://www.americanbar.org/groups/intellectual_property_law/publica-

tions/landslide/2017-18/march-april/diversifying-intellectual-property-law/.

100

Lydia Pallas Loren, Renegotiating the Copyright Deal in the Shadow of the “In-

alienable Right to Terminate, 62

LORIDA

L. R

1329 (2010).

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The Future Is Now 67

when she asserts, as have other IP scholars in the context of copyright

formalities, that only those artists who value their work will pursue

terminations.

101

Professor Loren contends “[s]ome argue that the specific steps re-

quired to exercise a termination right make it extremely difficult for au-

thors and their families to actually terminate an agreement and even

attribute that to the powerful lobby industries that opposed the termina-

tion rights. However, freedom of contract and sanctity of contract should

not be easily overridden. Clear rules with established protocols for termi-

nation are an appropriate trade-off.”

For African-Americans, the notion of freedom of contract has mostly

been a canard. The premise appears to be that because “a contract is the

result of the free bargaining of parties who are brought together by the

play of the market and who meet each other on a footing of social and

approximate economic equality, there is no danger that freedom of con-

tract will be a threat to the social order as a whole.”

102

However, given

the long history of oppression suffered by African-Americans, it is impos-

sible to accept the premise of equality on which this premise rests. The

case for preserving freedom of contract is not nearly so strong as Professor

Loren asserts.

Similarly, assertions that copyright terminations promote the creation

of works under a utilitarian incentive theory simply collapse in the context

of African-American authors. Professor Loren, for example, asserts that

“[t]he termination right permits the author and the author’s family to re-

examine any transfer thirty-five years later and determine if the deal

struck resulted in appropriate compensation or otherwise was a satisfac-

tory arrangement. Thus, termination rights help fulfill the utilitarian goal

of dissemination of creative works.”

103

That goal is completely overshadowed in the face of social inequality.

Early blues and rock artists lacked representation and were often illiterate

or semi-literate.

104

The 1990’s and 1980’s inner-city rap artists like the

101

Id. at 1354. “The reality is that the termination rights will be exercised only for

very successful works with commercial staying power.”

102

Fredrich Kessler, Contracts of Adhesion—Some Thoughts About Freedom of

Contract, 43

OLUM

. L. R

. 629, 630 (1943).

103

Id. at 1349.

104

See Paul Oliver, Blues Research: Problems and Possibilities, 2

J. M

USICOLOGY

377, 380 (1983) (noting that “[f]ew blues singers can read or write . . . .”); see also

Hisham Melhem, Blues, the Devil’s Music, Alarabiya News (May 15, 2020), https://

english.alarabiya.net/views/news/world/2015/05/18/Blues-the-Devil-s-music. (not-

ing that “[m]ost of the great Delta blues singers were illiterate or had rudimentary

education, and none of them studied music . . . .”).

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68 Journal, Copyright Society of the U.S.A.

bluesmen before them, also lacked resources.

105

To imagine these cre-

ators, as youths, would make these kinds of calculations, and have the

wherewithal to navigate the Byzantine copyright termination process is

fairly preposterous. The incentive theory of copyright as it relates to the

recapture right is untenable against such a background.

VIII. STREAMING AND ADVERTISING AND THE OLD-

SCHOOL HIP-HOP CATALOG

Digital music streaming has revitalized the music business. Rap music

leads the music industry in revenues, as hip-hop has become the dominant

musical genre in the U.S. and globally Hip-hop and R&B music account

for over one-third of all digital

106

streaming revenues.

107

Leading artists

like Nicki Minaj, Drake and Kanye West produce industry-leading stream-

ing numbers. The number one playlist on Spotify is “Rap Caviar.”

108

relatively new app, Tik-Tok, has taken a leading role in promoting stream-

ing of hip-hop music.

109

Investment bankers salivate over the future of hip-hop, projecting

that “music revenue is going to double to about $131 billion by

2030. . .[and] music streaming sales are dominated by hip-hop artists such

as Drake, Kendrick Lamar, The Weeknd, Migos and Cardi B.”

110

Hip-hop is also front and center in the domains of film, television and

advertising, where the music is widely used. Rap music, more than any

other genre, has been at the forefront of advertising. Analysts note that

105

See Edward C. Burkes, Bronx Rate of Poverty is the Highest,

N.Y. T

IMES

(Nov.

4, 1972), https://www.nytimes.com/1972/11/04/archives/bronx-rate-of-poverty-is-

the-highest.highest.html

106

“The growing popularity of hip-hop was a contributor to a massive 72% in-

crease in on-demand audio streaming in the U.S. But it’s not just a U.S. trend:

Hip-Hop in the streaming era has gone mainstream around the world.” Gary

Smith, Hip-Hop in the Streaming Era: A New Generation Takes Over,

USIC

N-

DUSTRY

NSIGHTS

(

Apr. 25, 2019), https://insights.midem.com/music-business/hip-

hop-in-the-streaming-era.

107

Paul Resnikof, Hip-Hop + R&B Account for 1 Out of Every 3 Music Streams

in America,

IGITAL

USIC

EWS

(July 9, 2018), https://www.digitalmusicnews.

com/2018/07/09/hip-hop-rap-music-streaming-2018.

108

How a Hit Happens Now: The Most Influential Playlist in Music is Spotify’s

Rap Caviar, Which Turns Mixtape Rappers into Megastars,

ULTURE

COM

(

2017),

https://www.vulture.com/2017/09/spotify-rapcaviarmost-influential-playlist-in-

music.html.

109

TikTok has become a force in music distribution. “No emerging app helped

break more songs in 2019 than TikTok with a global reach of 500 million users

tuning into its short-form video clips.”

U.S. M

USIC

: N

IELSON

-Y

EAR

EPORT

U.S. 2019 (2019)

, https://www.nielsen.com/wp-content/uploads/sites/3/2019/06/niel

sen-us-musicmid-year-report-2019.pdf.

110

Kori Hale, Goldman Sachs Bets on Hip-Hop and Millennials for Music Revi-

val,

ORBES

(

Feb. 6, 2019), http://www.forbes.com.

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The Future Is Now 69

“[f]rom insurance commercials to ads for Wrigley’s gum, more and more

companies are looking to up their cool factor [by using rap music in televi-

sion advertising]”.

111

The use of music in advertising is a billion-dollar business, and one

that can enrich music artists. Missy Elliott, Lil Dicky and Future are just a

few of the big names whose music has shown up in some of the best com-

mercials on TV.

112

The highlight of the 2019 Superbowl was a Mercedes-

Benz ad featuring the song Stand-Up by the rapper Ludacris.

113

Ludacris

scored a hit with the song in 2003. Later, he and coproducer Kanye West

were sued for copyright infringement by an obscure group called IOF.

114

However, music advertising revenue can be a double-edged sword for

artists. On the one hand, ad appearances are lucrative, and come without

the tortured accounting practices of record industry contracts. On the

other, they can cheapen or tarnish an artist’s legacy. The iconic 1990s rap

duo Salt n Pepa appeared in a Geico Insurance commercial in 2014 per-

forming their monster 1987 hit, Push-It.

115

Salt n Pepa did not write the

song — it was written by famous hip-hop producer Herby “Luvbug”

Azor.

116

As mere performers, the rap duo would receive payments for

appearing in the commercial. But as non-composers they would not be

111

See K C. Orcutt, 21 Times Rappers Provided the Soundtrack for TV Commer-

cials, XXL (July 16, 2016), https://www.xxlmag.com/rappers-music-tv-commercials.

112

Id.

113

See Rania Aniftos, Ludacris Makes Life a Little Less Boring in Mercedes-Benz

Super Bowl Commercial: Watch,

ILLBOARD

AGAZINE

(

Feb. 1, 2019), https://

www.billboard.com/articles/news/8496167/ludacris-mercedes-benz-commercial-

watch.

114

The unknown musical group IOF claimed that Ludacris appropriated the

phrase “just like that” from their composition, a claim rejected at trial and proving

once again that “nobodies” cannot prevail in copyright infringement cases. See

Natalie Finn, Ludacris, Kanye West Tell “Stand Up” Story: Ludacris and West Tes-

tify That They Had No Knowledge of the Song a Little-Known New Jersey-Based

Group Is Accusing They Ripped off for Their 2003 Single “Stand Up”,

ILLBOARD

AGAZINE

(May 25, 2006), https://www.eonline.com/news/52428/ludacris-kanye-

west-tell-quot-stand-up-quot-story.

115

See Elias Leigh, Salt-N-Pepa Teach People to ‘Push It’ in New Geico Commer-

cial,

ILLBOARD

AGAZINE

(

Nov. 26, 2014), https://www.billboard.com/articles/

news/6327810/salt-n-pepa-push-it-geicocommercial.

116

Salt N-Pepa has a tortuous history with complex music contracts, resulting in

exploitation:

In 1985, Salt-N-Pepa—on the verge of becoming one of hip-hop’s mar-

quee acts—signed a contract with Next Plateau Records that granted

their manager Herby Luv Bug half of a $5 million check for production

costs, while the group’s three members split the remainder. Herby was

initially receiving 100 percent of the group’s royalties until they renegoti-

ated years later.

John Kennedy, Confusion over His Record Deal Recalls Raps’s Bad Old Days,

AHOO

NTERTAINMENT

(May 3, 2017), https://www.yahoo.com/entertainment/lil-

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70 Journal, Copyright Society of the U.S.A.

entitled copyright license fees or royalties from the song’s performance in

the commercial. As non-composers, they also would not receive perform-

ance or mechanical royalties for their platinum albums. Salt and Peppa

were shocked at how little they were being compensated at the height of

their fame.

117

The rap group seems grateful the commercial ad introduced them to a

new generation.

118

Push It was originally released in 1987 and as such, is

within the window for copyright termination. However, that right belongs

solely to the composer. Hip-hop music is ripe for commercial exploitation

in many forms — re-issues, digital streaming, sales of vinyl, synchroniza-

tion in film and television, advertising, and theatre.

As it stands, the old-school hip-hop music catalogue will create tre-

mendous opportunities for wealth creation going forward. “Where a high-

yield legacy recording or song is presumptively [at] issue, the financial

stakes are extraordinary. . .. these works function as annuities

[and]. . .[t]heir worth, when capitalized using standard accounting and val-

uation methods, can be tremendous.”

119

That wealth, however, is likely

to remain in the hands of large corporate interests under the penalizing

effects of the copyright termination provisions.

IX. “UNREMUNERATIVE” TRANSFERS AND HIP-HOP MUSIC

CONTRACTS

When Congress enacted the copyright termination provisions, the

stated purpose was to protect artists from “unremunerative” transfers of

bargaining leverage. Copyright termination would provide artists “a sec-

ond bite of the apple.”

120

Historically, African-American artists could

yachty-apos-confusion-over-191957991.html https://www.complex.com/music/2017/

05/lilyachty-confusion-over-his-record-deal-

117

The rap duo Salt N-Pepa also fought Herby Luv Bug and their record com-

pany, Next Plateau, over money. “The production company was paid millions.

Hurby wrote many of the songs. He gets money every time they are on the radio

— they never quite grasped that,” says Eddie O’Loughlin of Next Plateau, an inde-

pendent label that [represents] other top groups.” Dinita Smith, How Salt-N-

Peppa Turned Rock on Its Head,

NTELLIGENCER

(Jan. 14, 1994) (Jan. 17, 1994),

https://nymag.com/intelligencer/1994/01/straight-outta-queens.html.

118

See Dan Reilly, Cheryl ‘Salt’ James Talks Salt-N-Pepa Nostalgia and That Ge-

ico Commercial,

ULTURE

COM

(

July 29, 2015), https://www.vulture.com/2015/07/

salt-n-pepa-nostalgia-geico-90s-fest.html.

119

David Givens, Esq,, U.S. Copyright Termination: Remonetization’s Final

Frontier, (2014) https://static1.squarespace.com/static/525ed589e4b07b05fff51e46/t/

570d1c6f01dbae1ce3e77c1e/14604770 50080/US+Copyright+Termination+-

+Remonitization%27s+Final+Frontier+-+MIDEM+2016.pdf.

120

Dana Halber,, Copyright Termination Rights: Giving Artists Their Second Bite

at the Apple,

ACE

NTELL

. P

ROP

., S

PORTS

, & E

. L. F.

(April 21, 2013), https://

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The Future Is Now 71

serve as the poster child and “exhibit A” for “unremunerative” assign-

ments of copyright. Artists such as Scott Joplin, Jelly Roll Morton, Bessie

Smith, Little Richard and Richard Berry signed away their works for little

or no compensation. Richard Berry, for example, conveyed all his rights

in the composition Louie, Louie, a foundational rock song, for $750 in the

1950’s.

121

Little Richard reportedly conveyed his rights in the iconic song

Tutti Frutti to a music publisher for $50.

122

Perhaps the granddaddy of all “unremunerative” transfers was the in-

famous Jimi Hendrix PPX contract. In 1965, Hendrix assigned his rights in

all works created between 1965 and 1969 to PPX for the princely sum of

one dollar and one percent royalty rate.

123

The Hendrix PPX contract en-

ded up litigated for many years after the rock icon’s death.

124

It is true that

egregious recording contracts impacted black and white artists alike — the

pipself.blogs.pace.edu/2013/04/21/copyright-termination-rights-giving-artists-their-

second-bite-at-the-apple (“When Congress enacted the 1976 Act, which went into

effect on January 1, 1978, the intent of Section 203 was to give authors and artists a

“second bite at the apple,” as it’s commonly heard throughout the industry . . ..”).

121

See Jon Pareles,” Richard Berry, Songwriter of ‘Louie Louie,’ Dies at 61,

ORK

IMES

(Jan 25, 1997), https://www.nytimes.com/1997/01/25/arts/richard-

berry-songwriter-of-louie-louie-dies-at-61.html, (“In 1959, [Berry] needed money

to get married, and he sold the publishing rights to ‘’Louie Louie’’ to Max Feirtag,

the owner of Flip [Records].”, for $750. . .[p]ublishing royalties for the ever-in-

creasing number of versions of ‘’Louie Louie’’ went to Max Feirtag until 1986,

when Mr. Berry finally recovered three-quarters of the publishing rights to his

song, although he did not receive back royalties.”).

122

See Gerri Hirshey, From Sin to Salvation: Little Richard Tells All,

OLLING

TONE

. (May 9, 2020), https://www.rollingstone.com/music/music-features/lit-

tle-richard-gay-preacher-biography-996737. (In his own words, Little Richard re-

vealed that he “had signed a very bad deal with Specialty. If you wanted to record,

you signed on their terms or you didn’t record. I got half a cent for every record

sold. Who ever heard of cutting a penny in half! It didn’t matter how many records

you sold if you were black. The publishing rights were sold to the record label

before the record was released. “Tutti-Frutti” was sold to Specialty for 50

dollars.”).

123

“On October 15, 1965, [Hendrix and producer Ed Chalpin] inked a notorious

three-year recording contract–for $1.00 and a 1% royalty — with Jimi (then

“Jimmy”) Hendrix and Curtis Knight & The Squires that would prove endlessly

problematic, once the guitarist hit big with his own group, the Jimi Hendrix Expe-

rience, in 1967.” Experience Hendrix and Legacy Recordings Acquire Rights To 88

Recordings by Curtis Knight & The Squires Featuring Jimi Hendrix,

IMI

ENDRIX

XPERIENCE

(July 17, 2014), https://www.jimihendrix.com/news/experience-hen-

drix-legacy-recordings-rights-88-recordings-curtis-knight-squires-jimi-hendrix.

124

See Experience Hendrix, LLC v. Chalpin, No. 06 Civ.9926(LAK), (S.D.N.Y.

Nov. 6, 2006) (noting that PPX “agreement led to lengthy legal battles between

Chalpin and Enterprises, on the one hand, and Hendrix and his estate (the “Hen-

drix Estate”), on the other.”).

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72 Journal, Copyright Society of the U.S.A.

Beatles early recording contracts, for example, were very unfair.

125

I have

contended elsewhere that the very structure of the American music indus-

try was shaped — and tainted — by racism, and this impacted the fortunes

of all artists. Segregated “race record” music label practices became the

norm for the entire industry.

This thesis is borne out by what happened when an African-American

assumed the roles of music moguls in the 1960’s. The company of course

was Motown, founded by the legendary Berry Gordy. Motown repre-

sented a quintessential American rags-to-riches success story. A young

Black man borrows $500 to start a record label, creates a billion-dollar

company from humble beginnings and changes the music business forever.

There is a sinister backstory to Motown forever. Motown created great

success, and in some cases, great wealth for Black artists. However,

Motown has also faced accusations of exploiting artists.

126

When the Jackson Five signed to Motown in 1968, the group must

have been ecstatic. Their father, Joe Jackson, who was a steel worker with

no music industry experience, negotiated the deal with Gordy. How bad

was that initial deal? So bad that when the Jackson Five left Motown in

1975, after numerous number one hits for the label, Motown demanded

$500,000 for “unrecouped” expenses, and for the group to declaim any

rights to the Jackson Five trademark, which Motown retained.

127

Motown’s experience demonstrated that just because a Black person ran a

record label did not mean more equity for artists.

X. HIP-HOP RECORD LABEL AND EGREGIOUS CONTRACTS

In the early days of the hip-hop industry, many independent labels

that sprung up as hip-hop had not gained widespread acceptance and ma-

jor labels were leery of the genre. One of the first hip-hop labels was

Sugar Hill Records, the label that launched the first main-stream hip-hop

125

See Stan Soocher, Did Litigation Kill the Beatles?,

ABA J

OURNAL

(

May 1,

2016), https://www.abajournal.com/magazine/article/did_litigation_kill_the_beatles

(noting that the Beatles entered into a “lopsided and ill-advised” merchandising

deal that conveyed 99% of profits from the sale of Beatles’ goods).

126

“One significant difference [between Motown and the major labels] was that

Motown charged back to the artists the costs of recording, such as studio time and

musicians, while [the majors] paid all such fees. Moreover, for developing and

managing Little Stevie Wonder’s career, Berry Gordy Jr. Enterprises took twenty-

five per cent of total earnings, the same commission rate charged by Brian Ep-

stein’s NEMS Enterprises in his five-year management contract with the Beatles.”

Adam White, Motown, Stevie Wonder and the First ‘360 Deal’,

CUEPOINT

(Oct. 3,

2016), https://medium.com/cuepoint/stevie-wonder-motown-andthe-first-360-deal-

d3db0ff86a39.

127

CITE

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The Future Is Now 73

record, Rapper’s Delight in 1979. In doing so, Sugar Hill Records became

the face of hip-hop.

Sylvia Robinson was an African American music producer who

scored a hit with the song “Love is Strange” in 1960.

128

However, this

paled with the massive success Robinson soared to in launching the hip-

hop music industry. Lore has it that Robinson thought of doing what be-

came the first hit rap record after “hearing a DJ rapping over records in a

Harlem club.” Robinson then “set her son Joey to the task of finding

someone who could do the same thing on tape. Joey recruited his friend

Big Bank Hank from an Englewood, New Jersey, pizzeria, and Master

Gee and Wonder Mike from the surrounding neighborhood. This was on

a Friday. Sylvia named the newly formed trio after the Sugar Hill section

of Harlem, chose Chic’s disco smash “Good Times” as a backing track and

scheduled studio time for the following Monday.”

129

In doing so, Robinson went on to become “arguably one of the most

consequential producers and label owners of all time. Her business

opened the doors for all the independents that followed from Def Jam to

Top Dawg, and her music pioneered distinct concepts that set the template

for hip-hop’s entire creative arc. From party rocking, to the DJ as musi-

cian, to social consciousness, Sugar Hill made everything possible for to-

day’s hip-hop stars.”

130

The Sugar Hill label scored a slew of hits from

other artists in the stable, including Grandmaster Flash and the Furious

Five, whose song The Message politicized rap music and sold millions of

copies in one month.

131

128

“In the 1950’s, Sylvia earned her own place in music history as one-half of the

duo Mickey & Sylvia, who topped the R&B charts in 1957 and made the Top 20 on

Billboard’s Hot 100 with their song, “Love Is Strange.” It is believed the song was

penned by Bo Diddley, but this has been hotly contested over the years as are

many songs of that time written by African Americans. The song has been covered

by Diddley, Buddy Holley, Peaches & Herb, Kenny Rogers & Dolly Parton (yes, a

country version), and Paul & Linda McCartney. The song was featured promi-

nently in the 1987 film, Dirty Dancing. B.o.B. sampled the song in “My Sweet

Baby,” featured on B.o.B. Vs. Bobby Ray: The Mixtape, released in 2009.”

129

History.com Editors, The Sugar Hill Gang’s “Rapper’s Delight” Becomes Hip-

Hop’s First Top 40 Hit,

ISTORY

(June 1, 2021), https://www.history.com/this-day-

in-history/the-sugarhill-gangs-rappers-delight-becomes-hip-hops-firsttop-40-hit.

130

Dan Chamas, The Rise and Fall of Hip-Hop’s First Godmother: Sugar Hill

Records’ Sylvia Robinson,

ILLBOARD

AGAZINE

(

Oct.17, 2019), https://as-

sets.billboard.com/articles/columns/hip-hop/8533108/sugar-hill-records-sylvia-

robinson-hip-hop-godmother.

131

See Steven Daly, Hip-Hop Happens: Released in 1979, the Single “Rapper’s

Delight” Launched HipHop as a Multi-Billion-Dollar Phenomenon. The Opportu-

nistic 15-minute Track Also Revived the Career of its Producer, a Canny R&B Vet-

eran — but It Left the True Pioneers of Rap Fuming,

ANITY

AIR

(

Oct. 10, 2006),

https://www.vanityfair.com/culture/2005/11/hiphop200511.

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74 Journal, Copyright Society of the U.S.A.

So much about Rapper’s Delight foreshadowed the controversies —

and lawsuits—to come in the hip-hop industry. The sampling by Sugar

Hill Gang of Chic’s Good Times presaged the massive problem of digital

sampling in hip-hop.

132

The tangled ownership issues, illustrated by fact

that the lyricist for Rapper’s Delight, Grandmaster Caz, never received

royalty disputes that became a hallmark of hip-record labels.

133

Lawsuits between Sugar Hill Records and its publishing companies

and artists over unpaid royalties raged on for three decades and some con-

tinue to this date. Artists like the groundbreaking girl rap group, The

Sequence, signed to Sugar Hill had publishing rights to their song Funk

You Up locked up for thirty years.

134

Similarly, D.J. Wonder Mike of

Sugar Hill Gang stated in interviews that neither he nor his co-artists re-

ceived royalties from their songs for use in films like the Wedding Singer

and “Kangaroo Jack”, and for use in other songs by artists such as Missy

Elliot.

135

And as is so often the case, the Black-owned Sugar Hill label

ended up being acquired by a major record label — Universal Music.

136

Artists seeking terminations from the period of old-school hip-hop

will face challenges. Labels like Death Row Records kept very poor

132

Reportedly, upon hearing Rapper’s Delight in a Manhattan disco, an “en-

raged” Nile Rodgers, leader of the band Chic, “immediately sought legal action

and attempted to sue the Sugar Hill Gang for using his band’s instrumental in their

single. The lawsuit was settled out of court and appropriate credit was given to

Chic in their part of the song.” Kiah Fields, Today in Hip Hop History Sugar Hill

Gang Releases ‘Rapper’s Delight’ 37 Years Ago,

OURCE

(Sept. 16, 2016).

https://thesource.com/2016/09/16/today-in-hip-hop-history-sugar-hill-gang-releases-

rappers-delight-37-years-ago.

133

See Geoff Edgers, They Took Grandmaster Caz’s Rhymes Without Giving Him

Credit. Now, He’s Getting Revenge,

ASHINGTON

OST

(

Sept. 29, 2016), https://

www.washingtonpost.com/entertainment/music/theytook-grandmaster-cazs-

rhymes-without-giving-him-credit-now-hes-getting-revenge/2016/09/29/f519c35a

7f3e-11e6-8d0c-fb6c00c90481_story.html.

134

See Christopher R. Weingarten, The Sequence: The Funked-Up Legacy of Hip-

Hop’s First Ladies: They Were Rap’s First Southerners, its First Hit-Making Women

and Possibly the Inspiration for “Uptown Funk” – So Why Can’t They Get Their

Props?,

OLLING

TONE

(

May 24, 2017), https://www.rollingstone.com/music/mu-

sic-features/the-sequence-the-funked-up-legacy-of-hip-hops-firstladies-118369.

135

Wonder Mike Interview with Jayquan,

OUNDATION

(2006) http://

www.thafoundation.com/wonmike.htm (“There was a chipmunk that came out

called Fat Daddy Mack from 3 years ago. He says my rap and my name and I see

nothing from it. Missy Elliot has a song right now where she uses Apache. Not

something where there is a question of whether its Apache, but the whole record.

We see nothing. Lil Kim has used my words . . .. however, anyone has used our

stuff EVER we have NEVER seen a dime.”).

136

See Jake Paine, Sugar Hill Records Signs Deal with Universal Music Publish-

ing

, H

DX (

Apr. 8, 2013), https://hiphopdx.com/news/id.23502/title.sugar-

hill-records-signs-deal-with-universal-music-publishing#.

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The Future Is Now 75

records, and many of the early rap labels like Rap-a Lot and Cold Chillin’

Records were known for taking advantage of artists. The earliest hip-hop

artists, legends such as Cool Herc, DJ Red Alert, and others created a

business worth billions of dollars. But unlike the innovative founders of

companies like Apple and Microsoft, these pioneering hip-hop artists are

mostly forgotten, and often destitute. Not all this misfortune can be laid at

the feet of profligate spending by artists.

a key role in the fortunes of old-school hip hop artists. Roxanne Shante

was a teenager when she was asked to rap on what became the iconic hip-

hop record, Roxanne’s Revenge. Roxanne claims the label cheated her out

of royalties.

137

The termination provisions, if they functioned as intended,

would have given Shante the opportunity to terminate the original grant in

her record deal However, the label attorney who negotiated the 1984

deal stated in a sworn declaration filed in federal court that the company’s

copy was destroyed in a flood . . ..”

138

XI. RE-FORMALIZING COPYRIGHT: A DAGGER TO

AFRICAN-AMERICAN ARTISTS

In recent years, prominent scholars in the IP legal academy have con-

templated, and in some cases advocated, for bringing back many of the

1976 Copyright Act and the 1986 Berne Convention Amendments. Berke-

ley Law School put on a conference in 2013 entitled “Reformalizing Copy-

right.” The conference attracted “130 participants provided a

comprehensive overview of the past, present, and future of formalities and

explored an internationally acceptable framework for the reintroduction

of copyright formalities.”

139

Professor Samuelson noted that “[t]o respond

to the overly expansive copyright regime now in place, there emerged a

strong interest within the CPP group for “reformalizing” copyright

137

See Alex Frank, Rap Pioneer Roxanne Shant´e Finally Gets Her Moment,

ITCHFORK

(

Mar. 19, 2018), https://pitchfork.com/thepitch/rap-pioneer-roxanne-

shante-finally-gets-her-moment (noting that while “‘Roxanne’s Revenge’ went on

to sell 250,000 copies and made Shant ´e a trailblazer for women in rap . . . .”, Shante

claims she has never received a royalty check for the song).

138

Ben Sheffner, Roxanne’s Nonexistent Revenge,

LATE

(Sept. 2, 2009), https://

slate.com/newsand-politics/2009/09/heard-about-how-rap-legend-roxanne-shante-

forced-her-label-to-pay-for-her-cornellph-d-it-never.

139

Comments of Pamela Samuelson in Response to the Department of Com-

merce Internet Policy Task Force’s Green Paper, Copyright Policy, Creativity, and

Innovation in the Digital Economy on Incentives for Copyright Registration &

Recordation 4, (Jan. 17, 2014). https://www.uspto.gov/sites/default/files/documents/

samuelson_post-meeting_comments.pdf.

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76 Journal, Copyright Society of the U.S.A.

law.”

140

The conference participants recognized that in past times, copy-

right formalities constituted a “trap for the unwary,” but that with techno-

logical improvements, new formalities can be deployed without

disadvantaging artists. The participants apparently did not consider the

experience of African-American artists and formalities. Indeed, it is not

apparent that any perspectives from the Black community were present at

the conference.

The Berkeley conference on formalities Professor Carroll explained

“[the] theme of reform(aliz)ing copyright means that current public policy

must reclaim an increased role in establishing, administering, or regulating

new and existing systems of copyright formalities.”

141

XII. “WE FINALLY GOT A PIECE OF THE PIE?”

142

JUSTICE OR REVERSE REDISTRIBUTION?

cially constructed entitlements, copyright reflect policy choices. Those

policy choices favor those in power. If copyright policy paid as much at-

tention to inequitable distributive effects as it has to say, international cop-

yright piracy, perhaps the treatment of Black artists would look very

different.

rious for producing inequality. . .. [I]n fact, the unequal distribution of

resources is an inevitable feature of free markets.”

143

The question is

whether copyright, and particularly copyright formalities like copyright

terminations conform to notions of distributive justice. “In the United

States, as elsewhere, issues of distributive justice are connected to con-

cerns about systemic poverty and racism, and questions about the fairness

of affirmative action — policies that grant preferential treatment to partic-

ular racial or gender groups.”

144

140

Id.

141

Michael W. Carroll, A Realist Approach to Copyright Law’s Formalities, 28

ERKELEY

ECH

. L.J.

1551 (2004).

142

Theme song for The Jefferson’s, a 1970s tv show: “Well, we’re moving on up to

the East side to a deluxe apartment in the sky, moving on up to the East side, We

finally got a piece of the pie . . ..” The lyrics to the song were written by the late

Ja’net Dubois, an actress on the show. As an employee of CBS, her composition

would be considered a work-made-for-hire and not subject to copyright

termination.

143

EREMY DE

EER

, M

AKING

OPYRIGHT

ARKETS

ORK FOR

REATORS

ONSUMERS AND THE

UBLIC

NTEREST

141, 151 (2000), http://press-

files.anu.edu.au/downloads/press/n2190/pdf/ch05.pdf.

144

Michelle Maiese, Distributive Justice,

EYOND

NTRACTABILITY

(July 2020),

https://www.beyondintractability.org/essay/distributive_justice.

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The Future Is Now 77

Has copyright law on balance provided distributive justice to African-

American creators? In a 2016 law review article, Professor Merges and

Hughes tackled this question, and analyzed the fortunes of African-Amer-

ican authors under a Rawlsian lens. These esteemed professors, icons in

the legal academy, came to an astonishing conclusion: based Rawlsian

principles of distributive justice, copyright law represents the greatest of

all of wealth accumulation tool for African-Americans.

145

In other words,

“we finally got a piece of the pie.”

146

Professors Hughes and Merges deserve commendation for raising the

issue of distributive justice in the context of Black creativity and copyright

law. Their article is a brilliant exposition of the work of John Rawls in a

context not explored before — copyright law. And the fact these profes-

sors spent a considerable chunk of the piece to tie in the elephant in the

room — Black creatives — is real progress in a non-diverse IP academy

which has historically and completely ignored the problem of Black artists

and copyright expropriation.

At the outset, it must be acknowledged that any Rawlsian conception

of race comes with problems. As Professor Charles Mills has famously

noted, Rawls dodged the issue of race almost totally in his paradigm, an

issue that should have been at its center.

147

More significantly, Hughes

and Merges grapple with the issue of the treatment of Black creatives in

the copyright context, but ignore the central critique of “critical race”

scholars, who locate that treatment in the broader backdrop of race-neu-

trality and color-blindness as a key lever in the subordination of Blacks

under the color of law.

Hughes and Merges look to the success of some prominent and

wealthy Black creatives, and see hope for copyright law as a vehicle for

distributive justice. There are two dynamics, however, that they fail to

address. The first is practical in nature. Many of the Black entertainers

Hughes and Merges identify as copyright distributive justice exemplars in

fact do not garner the bulk of their revenues from copyright. Jay Z, for

145

Justin Hughes & Robert P. Merges, Copyright and Distributive Justice,

92 N

O-

TRE

AME

L. R

513 (2016).

146

Good Times theme song, supra note 144.

147

Professor Mills notes that “[w]e face a paradox: Rawls, the celebrated Ameri-

can philosopher of justice, had next to nothing to say in his work about what has

arguably historically been the most blatant American variety of injustice, racial

oppression. The postwar struggle for racial justice in practice and in theory and

the Rawlsian corpus on justice are almost completely separate and nonintersecting

universes. The remediation of the legacy of white supremacy is apparently not of

the slightest interest or concern for Rawls and most of his commentators and crit-

ics, as manifested in the marginality of this subject in his own work, and its virtual

nonappearance in the secondary literature.” Charles W. Mills, Rawls on Race/Race

in Rawls, 9

S. J. P

HIL

. 47 (2009).

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78 Journal, Copyright Society of the U.S.A.

example, generates far more income from his branding, merchandising

and investment vehicles than from traditional copyright income such as

music royalties.

148

Branding and endorsements, the domain of trademark

mark law and publicity rights law actually provide more robust streams

for the richest entertainers than copyright law does.

149

More importantly,

Hughes and Merge’s rosy approach to copyright and distribution of the pie

does not grapple with wealth-redistributive aspects and impacts of copy-

right law. This can be found, as outlined in my other scholarship in copy-

right doctrine, such as the idea-expression dichotomy, which left

innovative African-American styles unprotected, and the requirements of

fixation and originality, which exposed African-American improvisation

and short musical phrases to expropriation.

150

ted to shift creative resources out of the Black community and have func-

tioned as barriers to entry. The perspective of copyright law from the

streets looks is starkly different from the high towers of the legal academy.

In grappling with copyright, ordinary artists confront an unintelligible set

of mechanisms, if they are aware of such mechanisms at all. Even a “sim-

ple” one page copyright registration form becomes a frightening obstacle

to protection. I agree that copyright law could have been a major vehicle

to level the unequal playing field wrought by American apartheid, which

continues in different guise today. However, we are far from that point

today, and only with restructuring of copyright requiring fair compensa-

tion can the promise of distributive justice articulated by Hughes and

Merges be realized. It would require, in lines with the philosopher Rawls,

reimagining a copyright law scaled for the least advantaged.

151

148

Rapper Sean Carter, better known as Jay Z, has music revenues that generate

$95 million. In contrast, just one of his brands, his champagne company Armand

de Brignac, is worth $250 million. See Madeline Berg, Billionaire Jay-Z’s Net

Worth Jumps 40% with Sales of Streaming Service Tidal, Champagne Brand,

ORBES

(Mar. 4, 2021), https://www.forbes.com/sites/maddieberg/2021/03/04/bil-

lionaire-rapper-entrepreneur-jay-zs-net-worth-jumps-40-with-sales-of-streaming-

service-tidal-champagne-brand/?sh=6484b8c7cc2c.

149

Id.

150

See Greene, Copyright, supra note 5.

151

See

AUL

OICE

, T

AMBRIDGE

AWLS

EXICON

, 420-21 (2014) (noting

that “the least advantaged are those members of society who comprise the “in-

come class with the lowest expectations.”), https://www.cambridge.org/core/books/

cambridge-rawls-lexicon/leastadvantaged-position/EF4F56F4ABD5202DF

3756D525120B1FD.

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The Future Is Now 79

XII. OUT OF THE MAZE — A WAY FORWARD FOR

Professor Menell has noted that “from its earliest manifestations, cop-

yright law has struggled to deal with the equitable and efficient division of

value and control between creators and the enterprises that distribute

their works. And for almost as long as copyright has existed, there has

been concern about creators getting the short end of the stick in their deal-

ings with distributors.”

152

The racial disparity in this connection is a per-

sistent feature of the American music industry. Little Richard, a

foundational rock artist, purportedly signed away his rights to Tutti Frutti

for $50 in exchange for a half-cent royalty.

153

Richard Berry, who com-

posed the iconic rock anthem Louie, Louie, signed away his rights for

$750, to buy a wedding ring.

154

This is not just some old problem from the

1950’s. Rapper Cardi B signed an exploitative record contract and man-

agement deal before she became a star. Professors Ginsburg and Bentley

suggest that the better way to vindicate artist’s rights would be through

contract regulation of copyright transfers rather than copyright termina-

tion.

155

This approach was tried in South Africa’s copyright law reform.

The legislation proposed, in addition to adding fair use requirements also

requiring entertainment industry contracts, which are driven by copyright

ownership, to provide fair compensation.

156

The response to South Af-

152

Peter S. Menell & David Nimmer, Pooh-Poohing Copyright Law’s ‘Inaliena-

ble’ Termination Rights, 57 J.

OPYRIGHT

’

799 (2010).

153

Carlie Porterfield, How Little Richard Was Exploited by a Bad Record Deal

and Never Fully Cashed in,

ORBES

(May 9, 2020), https://www.forbes.com/sites/

carlieporterfield/2020/05/09/how-littlerichard-was-exploited-by-a-bad-record-deal-

and-never-fully-cashed-in/?sh=19a104854d96 (noting that “Little Richard’s “con-

tract was typical for black musicians of the time—while white artists would enjoy a

cut of between 3% and 5%—and Little Richard also reportedly received no royal-

ties when his hits were used in movies or covered by white singers, a common

practice in the music industry at the time.”).

154

“Smashed Song”, Louie, Louie, BBC (Apr. 30, 2015), https://www.bbc.com/

news/magazine-32520921 (noting Berry reacquired his rights to the song in 1980’s).

“In 1986, an artists’ rights group helped him recover royalties worth about $2 mil-

lion.” See ‘Louie, Louie’ Composer Richard Berry Dies at 61,

ASHINGTON

OST

(

Jan. 25, 1997), https://www.washingtonpost.com/archive/local/1997/01/25/louie-

louie-composer-richard-berry-dies-at-61/3b7b2bba-830c-4dfb-bb86-ca9673d6e787.

155

See Lionel Bently & Jane Ginsburg, The Sole Right . . . Shall Return to the

Authors” Anglo-American Authors’ Reversion Rights from the Statute of Anne to

Contemporary U.S. Copyright Law, 25

ERKELEY

ECH

. L.J.

1465, 1586 (2010).

156

See Sean Flynn, Making Sense of South Africa’s New Copyright Bill and US

Trade Threats,

ONVERSATION

(Dec. 15, 2020), https://theconversation.com/

making-sense-of-south-africas-new-copyright-bill-and-us-trade-threats-128418.

(noting that South Africa’s Copyright Amendment Bill “includes rights to royal-

ties, limitations on unfair contracts, and reversion of all copyright assignments to

creators after 25 years.”

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80 Journal, Copyright Society of the U.S.A.

rica’s proposed legislation, which included expansive fair use provisions

met a hostile response from the global entertainment industry and the

United States and the European Union. There was “unprecedented pres-

sure, with economic implications, from the U.S. Trade Representative and

the EU Commission. The USTR and EU Commission were strongly influ-

enced by lobby groups inside South Africa and abroad, and multi-billion-

dollar publishing and creative conglomerates that opposed the Bill.”

157

The prospects for fair copyright compensation legislation in the U.S.

would be subject to the same line of attack.

First and foremost, reform of the copyright termination provisions

would begin with the Copyright Office. The Copyright Office at present

provides some data on terminations, but the data is insufficient. It pro-

vides the number of terminations in its report, but not the parties. Moreo-

ver, the office does provide data on the universe of works that are eligible

for termination compared to the number of actual terminations. The Cop-

yright Office could do a great service to underserved artists by providing

this information and doing a campaign of public service announcements to

educate and inform artists about the termination right.

Next, the role of Congress should be utilized. Congress could, if the

political will existed, place the burden on rightsholders to keep track of

termination dates and send notices to artists regarding the existence of

termination rights and termination procedures such as notice. As sug-

gested by the advocacy group Public Knowledge, could also make copy-

right termination automatic.

158

Congress could require all contracts where a party transfers copy-

rights to contain information on copyright termination, including the dates

for sending notices and effectuating termination. Congress should also re-

solve the issue whether sound recordings are subject to termination of

sound recordings, rather than leave the issue to the courts, who are by

nature less representative of American society.

African-American artists are the engine of the American music busi-

ness, and past inequities have deprived these creators of untold billions. A

radical restructuring of the termination system would indeed constitute a

much-fairness for artists presently unable to exercise their rights. Looking

157

See Denise Nicholson, South Africa’s Copyright Amendment Bill—Five Year’s

On,

INFOJUSTICE

(Aug. 17, 2020), https://infojustice.org/archives/42570.

158

Public Knowledge proposes that Congress should “[r]evise the Copyright Act

so that the termination right vests automatically, with an option for artists to delay

or opt-out of the automatic reversion to renegotiate more favorable contracts.

Y-

LAN

ILBERT

, M

EREDITH

OSE

& A

LISA

ALENTIN

AKING

ENSE OF THE

ER-

MINATION

IGHT

: H

OW THE

YSTEM

AILS

, A

RTISTS AND

OW TO

(Dec.

2019), https://www.publicknowledge.org/wp-content/uploads/2019/12/Making-

Sense-of-the-Termination-Right1.pdf. While noble in spirit, the political obstacles

to such a proposal would be gargantuan.

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The Future Is Now 81

forward, an equitable copyright termination regime is consistent with the

incentive theory of copyright. As analysts have noted, despite the rhetoric

of artist incentives as the basis of copyright protection, “[i]n practice. . ..

relatively few of copyright’s rewards end up in creators’ pockets. Indeed,

such a huge proportion of the benefits of increased protection is captured

by others in the cultural production chain that authors are sometimes

viewed as “stalking horse[s]” to mask other economic interests.”

159

These

measures would help close the knowledge gap and provide economic re-

wards to those who most deserve them.

159

Rebecca Giblin, A New Copyright Bargain? Reclaiming Lost Culture and Get-

ting Authors Paid, 41

OLUM

. J. L.&A

RTS

369, 382 (2018).

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