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<img class="wp-image-4595 size-medium alignleft" src="https://copyrightcontentplatforms.bakerhostetlerblogs.com/wp-content/uploads/sites/21/2016/12/1-300x120.png" width="300" height="120" />Earlier this month, Justice Arnold of England’s High Court of Justice ruled that members of the music group Duran Duran breached their agreements with music publisher Gloucester Place Music (owned by Sony/ATV) by filing notices under Section 203 of the U.S. Copyright Act to terminate the assignments to Gloucester of copyrights in 37 of Duran Duran’s songs.

<img class="wp-image-4596 size-full alignright" src="https://copyrightcontentplatforms.bakerhostetlerblogs.com/wp-content/uploads/sites/21/2016/12/2.png" width="188" height="177" />In the 1980s and ’90s, the five members of Duran Duran signed music publishing agreements with Gloucester’s predecessors and related companies, which assigned all rights to the copyright in works written by the group’s members in exchange for advances and royalties. During the term of the music publishing agreements, Duran Duran wrote 37 songs, including some of its most famous hits – Girls on Film, Rio, A View to Kill and Hungry Like the Wolf. All rights to the copyrights in these valuable songs are vested with the music publisher.



<img class=" wp-image-4597 alignleft" src="https://copyrightcontentplatforms.bakerhostetlerblogs.com/wp-content/uploads/sites/21/2016/12/3.png" alt="3" width="186" height="192" />This story sounds familiar. Every movie ever made about a musician who “makes it” starts just like it: a young starving artist wanting to make a name for himself signs away his rights to a big music publisher or record label that, in turn, appears to take advantage of the young musician’s naiveté. But irrespective of the parties’ sophistication, a young artist’s potential is virtually impossible to predict – and this is even more true when it comes to the potential of any one song. The 1976 Copyright Act sought to remedy this wrong by providing authors the ability to regain control of their songs when their works’ commercial value is known.

Under Section 203, for works for which an author transferred his or her copyright on or after Jan.1, 1978, authors have a five-year window – between 35 and 40 years from the date of the conveyance – to terminate the transfer by serving a notice of termination on the copyright holder and the U.S. Copyright Office. Section 203’s termination right is inalienable: “Termination of the grant may be effected notwithstanding any agreement to the contrary, including an agreement to make a will or to make any future grant.”

<img class=" wp-image-4598 alignleft" src="https://copyrightcontentplatforms.bakerhostetlerblogs.com/wp-content/uploads/sites/21/2016/12/4.png" alt="4" width="216" height="134" />So why did Duran Duran’s notices of termination cause Gloucester to file an action for breach of contract? Duran Duran’s music publishing agreements were subject to English law, and Gloucester argued that the interpretation of the music publishing agreements under English law prevents Duran Duran from exercising rights under U.S. copyright law.  Justice Arnold agreed. After analyzing the provisions of the music publishing agreements, the court concluded that the language of the contracts “conveyed to a reasonable person having the relevant background knowledge” that the parties’ intention was that the “‘entire copyrights’ in the Compositions should vest and remain vested in [Gloucester] for the ‘full term’ of the copyrights.” The court concluded that the members of Duran Duran acted in breach of the music publishing agreements by serving the notices of termination.

Justice Arnold’s reasoning appears flawed. Even assuming that the music publishing agreements were ironclad and the court’s interpretation of the parties’ intent was absolutely correct, an author cannot contract away his or her Section 203 termination rights. A statement made by the band members’ solicitor seemed to make this point: “As a consequence of Section 203, a US Court would not allow a claim for damages for breach of a contractual agreement because the statutory termination right supersedes any contractual right. This applies whether that contract was governed under English or US law.” Justice Arnold refused to consider this argument because, among other reasons, no expert evidence as to U.S. law was introduced and the solicitor cited no case law in support.

The failure of this decision to consider Section 203, despite Section 203’s explicit pre-emption of contractual terms, appears to be a major flaw that could be redressed on appeal. The band members were obviously dismayed at the result, having been teenagers when those contracts were signed.

Duran Duran Comes Undone in Fight Over Copyright Termination Rights: English Court Rules Section 203 Notices Breach Band’s Publishing Agreements