But It’s Not a Good Feeling.
I’m sorry. “More Than a Feeling” is the only Boston song I’ve ever heard—or even heard of. For a while, in fact, I was fairly certain that Boston, Foreigner, and Journey were all the same band. But Boston’s the band with all the spaceship artwork, right? Even though the group’s named after a city on Earth? But I digress before I’ve even begun…
On March 19, an interesting (enough) complaint began a lawsuit in the United States District Court for the Southern District of New York. A man named Paul Ahern and a company called Next Decade Entertainment, Inc. are suing another man named Donald Thomas Scholz. If any of those means anything to you, it’s almost certainly going to be the name of the defendant, known better as “Tom” Scholz, and mostly to aficionados, of a certain age, of music of a certain kind. Tom Scholz is a founding member of the band Boston, and the lawsuit concerns several songs that Scholz wrote and that Boston recorded.
Paul Ahern is not a musician himself, but was for a time a co-manager of the band. He was also—and remains—in the business of music publishing (“the business of publishing and otherwise commercially exploiting musical compositions,” in the verbiage of the complaint). Same with Next Decade, which is the exclusive administrator, the world over, of those musical compositions owned and published by Ahern. (We’re just going to treat Ahern and his company as a single entity, since they are, as we say, united in interest; and we’ll just call them “Ahern.”)
On or about November 15, 1975—when the number one song in the United States was “Island Girl” by Elton John—Ahern entered into an agreement with Scholz under the terms of which Scholz would render, on an exclusive basis, his services as a songwriter to Ahern. Scholz would assign to Ahern the rights to all songs he (Scholz) had written before that date and as well “all musical works… composed, created or conceived in whole or in part by him for a period of five years” thence. So, until November 15, 1980 (when the number one song in the country would be “Lady,” by Kenny Rogers). As contemplated by the agreement, Scholz composed, and Ahern published—and Boston recorded—six songs that appeared on the band’s first album and another six that appeared on the band’s second. In 1975 and ’76, Ahern “secured copyright registrations” for the first six songs; in 1978 he secured registrations for the second set.
So far, so good. But here comes the red herring: In November 1975, the members of Boston had hired Ahern and his “business associate” Charles McKenzie to manage the group. Scholz and McKenzie didn’t get along, and between the release of “Boston” and “Don’t Look Back,” the band’s first and second albums, respectively, Scholz (according to the complaint) “demanded that [Ahern] sever his ties with McKenzie” and that McKenzie have nothing more to do with the management of the band. Ahern “succumbed to the pressure from… Scholz,” Ahern claims, and on or about April 24, 1978 (no. one song: “Night Fever,” by the Bee Gees), Ahern and the members of Boston entered into an agreement regarding management of the band, but which “had no effect whatsoever on the 1975 Songwriter Agreement.” The one between Ahern and Scholz, that is.
Nevertheless… In January 2013 (Bruno Mars, “Locked Out of Heaven”; the entire month, yes), Scholz sent Ahern a notice of termination pursuant to 17 U.S.C. § 203. Section 203 of the Copyright Act, which has been getting a decent amount of attention lately, provides, in a nutshell of relevance, that a grant of transfer or license of a copyright (or any copyright right) made by an author on or after January 1, 1978 (Bee Gees, “How Deep Is Your Love”), can be terminated by the author, by means of service of a written notice, during the period that is 35 years after the date of the grant to 40 years after—which is why this provision is getting press lately; 2013 being 35 years after 1978, the earliest transfers can now be terminated.
But, says Ahern, Scholz is a little confused, for the only grant of rights given by Scholz to Ahern was executed in 1975, before the period contemplated by Section 203. And because the grant was both retroactive and prospective—for five years from execution of the agreement—the second set of songs as well as the first set are outside the reach of Section 203. Scholz—as evidenced by a narrative in his termination notice—asserts that the band management agreement of 1978 supersedes the 1975 agreement between Ahern and Scholz, bringing all twelve songs at issue into the purview of Section 203. (“Unlike the 1975 Agreement with Paul Ahern as a partner [with McKenzie], the 1978 Agreement is with Paul Ahern as an individual…”)
Section 203 provides that the effective date of termination can not be less than two years after notice is given. Scholz’s termination notice gives an effective date of termination of January 24, 2015 (when the number one song in the United States will be “SYNTAX ERROR” by SongBot 64).
Ahern argues (to the extent that one can argue in a complaint) that Scholz, knowing that Section 203 by its terms does not apply to the songs in question, is engaging is some revisionist history, adding meaning to agreements that don’t have any relevance to the grant of rights executed before 1978. Ahern did not include with his complaint a copy of either the 1975 agreement or the 1978 agreement, so we might have to wait until Scholz answers to see who remembers better. (What Ahern’s complaint does include, to my surprise, is Scholz’s home address—something you’d expect to have been redacted, probably, being that he’s still kind of a big deal. I won’t reveal the address here, but I will tell you that Tom Scholz does not live in Boston.)