IP Law Daily, COPYRIGHT—S.D.N.Y.: Writer of ‘After the Love Has Gone’ finds no love lost with his publisher, (Jun 1, 2022)

By Matthew Hersh, J.D.

Songwriter did not need agreement of co-authors in order to invoke a termination right.

The co-writer of a chart-topping ballad that was performed by one of the most popular soul and disco groups of the 1970s has adequately pleaded that he terminated his agreement with one of the companies that owns the publishing rights to the song, the federal court for Manhattan has held. The court, refusing to dismiss the songwriter’s lawsuit against the music publisher, held that the songwriter adequately asserted that he owned an indivisible piece of the song and therefore did not need the collaboration of the other songwriters in order to invoke a termination (Champlin v. Music Sales Corp., May 31, 2022, Engelmayer, P.).

The lawsuit has its roots in After the Love Is Gone, the classic ballad by 1970s funk and disco superstars Earth Wind & Fire. The song—which continues to be performed today by the surviving members of the band—was co-written by William Champlin, David Foster, and Jay Graydon. But as with many popular hits, the three writers and their assorted music publishers soon found themselves at odds over the rights to royalties and other publishing-related rights.

In 1978, seeking to ensure a steady stream of revenue for the song, the three writers assigned the work to a variety of music publishing companies. However, they disagreed on just what publishing company obtained just what share. Champlin, believing himself to own a fully divisible one-third share of the song, assigned that share to a music publishing company called Bobette, which later divided it between three companies named Wise Music, Notes, and New Music. The other two writers, by contrast, thinking they owned a two-third share in the entire undivided song, assigned their shares to two different companies, which later passed along a portion of that share to industry giants EMI and Sony. (At this point one may plead for a scorecard to tell apart the players, but the reader may be assured that the ownership splits in this case are in fact relatively modest.).

The dispute arose when Champlin, the writer who had purported to make his one-third assignment on his own, involved a provision of the Copyright Act allowing him to reclaim his rights 35 years after the initial assignment. Most of the publishers agreed, but Wise Music did not. Wise Music took the position that when Champlin assigned his interest to Bobette (a portion of which wound up with Wise), he transferred not a divisible one-third piece of the song but rather a one-third share in the entire indivisible song. And because it takes a majority of the joint owners to terminate a copyright assignment, Wise reasoned, at least one of the other co-writers would have had to join in the termination notice to make it effective.

Champlin sued the recalcitrant music publisher, which promptly moved to dismiss, leading to this opinion.

Motion to dismiss. The court denied the motion to dismiss, finding that—at least on the current record—there was no basis to dismiss the complaint.

In denying the motion to dismiss, the court found that Champlin had at least plausibly alleged that he had executed a separate grant of ownership rights which could therefore be terminated by him alone. The music publisher pointed to a songwriters agreement that was purportedly executed by all three songwriters in 1978 and that treated the three co-authors as a unitary “composer.” But Champlin argued in this complaint that the songwriters agreement was subject to a later, separate administration agreement that incorporated the songwriters agreement and nonetheless allocated the song’s ownership separately among them. Thus, the court noted, it was an open question—at least on the present pleadings—whether Champlin had been in a position to grant, and therefore could now unilaterally terminate, a divisible interest in the song to the publisher’s predecessor.

What’s more, the court noted, even if the song were not divisible, meaning that a majority of writers were necessary to effect the termination, Champlin had adequately pleaded that his failure to include one of the other authors on the termination notice was harmless error. To be sure, the court noted, it was not a mere scrivener’s error, or typo. Champlin knew the other authors existed and deliberately excluded them from the document. But there was no harm to the publisher, the court found, because at the same time Champlin filed his notice of termination, the other two writers filed (and publicly recorded with the Copyright Office) their own termination notices with their publishers. Thus, if the publisher were going to insist on formalistic compliance with the notice requirements, they could not have been surprised that the other two publishers would be willing to go along and execute the termination notice. While the development of evidence might eventually undermine this claim, the court warned, there was no reason to dismiss it at the present stage.

The Case is No 1:21-cv-07688-PAE.

Attorneys: Jacqueline C. Charlesworth (Charlesworth Law) for William B. Champlin. Brian D. Caplan (Reitler Kailas & Rosenblatt LLP) for Music Sales Corp. and Wise Music Group Ltd.

Companies: Music Sales Corp.; Wise Music Group Ltd.

Cases: Copyright NewYorkNews