Duran Duran Hungry to Reclaim Copyright

Duran Duran circa 1981

The ’80s called, and they want their copyrights back: Duran Duran’s Nick Rhodes, Andy Taylor, John Taylor, Simon Le Bon and Roger Taylor. (Photo courtesy EMI)

Duran Duran is embarking on an international litigation adventure that will have ramifications for U.K. music artists with U.S. publishing interests. The ’80s super group seeks to take advantage of a standard provision under stateside law that allows authors or their heirs to reclaim copyright after 35 years of third-party exploitation.

The catch is, the group is based in the U.K., and has its publishing administered through the U.K. division of a U.S. company, setting the stage for an international IP rights battle that is likely to be long, messy, intellectually stimulating and precedent-setting. The band suffered the first knock-down Dec. 2 when the U.K. High Court ruled in favor of complainant Gloucester Place Music, upholding U.K. copyright terms that stipulate a less artist-friendly 70-year window before rights can revert.

Apparently, this is the first time this principle of copyright is being tested in this particular way — whether U.K. law can supercede that of the U.S. when being administered in the U.K., even though the territory in dispute is the U.S., where the revenue at issue is being generated.  U.S. contract law is very clear that terms deemed illegal under U.S. law are unenforceable, even if they exist in a mutually executed contract. Which would seem to indicate Duran Duran has punched the winning ticket on this one, even though the five band members are British, and their original 1980 contract was with the U.K.-based EMI Music.

Other U.K. bands have used U.S. legal venues to successfully press claims against publishers and labels on this very point. The fact that Duran Duran chose to do so in the U.K. reinforces the band’s position of trying to help other — presumably less battle-ready — U.K. artists by fighting for rule changes. Since the 35-year window that resulted from the U.S. Copyright Act of 1976 has only started opening within the past five years, law in this area is just starting to be made.

The particular history of Duran Duran, its contract agreements and the domicile and ownership of the various companies with whom it was bargaining will provide both sides with plenty of ammunition. In 1980, Duran Duran were signed by EMI Music, based in the U.K.

In November 2011 it was announced that EMI was to be sold, with two U.S. companies purchasing its assets: Universal Music Group got the company’s recorded music operations (for $1.9 billion), and Sony/ATV Music the publishing (for $2.2 billion). Under U.S. law, contract terms are permitted to be assignable to buyers, but only if they’re legal here. The U.S. Copyright Act, Section 304 (c), establishes by statute that “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.”

For anyone who might be confused by the legalese, that means: the grant may be terminated even if there is a contrary agreement in place, including an agreement to further extend the grant.

In 2014 Duran Duran served Gloucester Place Music termination notices indicating the band was seeking reversion of the American copyrights to their first three albums — Duran Duran, Rio and Seven and the Ragged Tiger and, as well as for the James Bond theme “A View To A Kill.”Gloucester Place Music is now owned by the U.S. based Sony/ATV.

After hearing arguments last month, Justice Richard Arnold on Dec. 2 ruled, “not without hesitation,” in favor of claimant (plaintiff) Gloucester Place, stating its interpretation of the agreements “is the correct one” and that the group members “have acted in breach of the agreements by serving the notices, or, where they have not yet taken effect, will do so if they are not withdrawn.” Arnold concluded that the “termination notices filed by the band were voided by these provisions in their contract.”

Them’s fightin’ words, if the courthouse comments of the band and its attorneys are any indication. “”If left untested, this judgment sets a very bad precedent for all songwriters of our era,” keyboardist Nick Rhodes said, signaling an appeal. “We are shocked that English contract law is being used to overturn artists’ rights in another territory.”

To the extent that the rights are administered in the U.S., by a U.S.-based company, the band may be able to press its claim here. British artists have met with past success in regaining U.S. copyright, but this is the first time the matter  has been tested in U.K. courts.  As artists, publishers and labels finally gain traction in accruing bigger shares of revenue from streaming and digital services, the heat has been turned up on rights issues.

“We are greatly concerned about this case,” said Vick Bain, the chief executive of the British Academy of Songwriters, Composers and Artists. “I really hope Duran Duran will appeal. It’s not fair that British songwriters should not enjoy the rights which their American counterparts have enjoyed for years.”

Duran Duran’s lawyer Michael Bloch, QC, called Gloucester Place’s blocking strategy “shameful,” and said the ruling could usher in an era wherein “the English court may serve as an offshore haven for any of their ilk who wish to defeat the protective provisions of the U.S. – the principal market for popular music in the English language – or any similar legislation elsewhere.”

In addition to Rhodes, lead vocalist Simon Le Bon, guitarist Andrew Taylor, bassist John Taylor and drummer Roger Taylor were also parties to the suit.

The argument on behalf of EMI/Gloucester by Ian Mill, QC, was that the case centered on “pure contractual construction,” and that the wording of the publishing contract meant “these writers have agreed that they will not seek to obtain a reversion of their copyrights under Section 203 [of the U.S. Copyright Act] and they are in breach of contract should they do so.”

The website of the New York law firm Franklin, Weinrib, Rudell & Vassallo offers what is perhaps the most succinct explanation of US copyright termination laws: “The termination mechanisms in the U.S. Copyright Act are extraordinary because they can undo contracts. Their purpose is to benefit creative ‘authors’ in their autumnal years…decades after the contracts were made. By that time — it is presumed– the true value of the author’s work has become known, which may not have been the case when the rights first were sold.”

Section 203(a) of the U.S. Copyright Act deals with post-1977 grants, specifying when and how notice of termination must be given and other rules. “As much of this implies, effecting a termination is not simple. It takes some thought and often time, money and considerable effort.” And sometimes, lawsuits.

Duran Duran perched on scales of justice

Duran Duran fight a legal battle to win back their early song copyrights. (Photo collage by Paula Parisi/MaxTheTrax)

One Response to "Duran Duran Hungry to Reclaim Copyright"

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