Looking for “Peace of Mind” (BOSTON 2)

You might recall this previous post, addressing the nascent lawsuit brought by a corporate music publisher/exploiter and its principal (plaintiffs Next Decade Entertainment, Inc. & Paul Ahearn) against songwriter Don Scholz, a member of the band BOSTON. In case you don’t want to go back and refresh your recollection, here’s the very skinny: Scholz had written (in 1975 and 1976) six songs for BOSTON’s first album (released in 1976) and another six for the band’s second album (released in ’78). Scholz had assigned his copyrights in the twelve compositions to Ahearn (for simplicity’s sake) prospectively in an agreement executed in 1975. Recently, Scholz gave notice to Ahearn of the termination of that transfer, to become effective in January 2015. Scholz’s notice asserts that the 1975 agreement (and specifically, relevantly, the grant of copyright rights therein) was superseded by a 1978 agreement. This is the linchpin of the copyright case.

After my prior post, a spirited discussion took place on Facebook. Another man who evidently knows quite a bit about copyright law and I spun out some possible scenarios, and I expect that he, like me, has been eager to see what would appear in Scholz’s answer. That answer was finally filed this week, and the answer to the question of what’s in it is: not all that much, really. Mostly it’s the usual denials and denials of knowledge and information….

But there is one revelation. According to Scholz, in 1978, at the time of execution of the new agreement, Ahearn acknowledged expressly that the termination circumstances, as provided  by the Copyright Act, were changing. Scholz alleges that Ahearn said, “I am giving up fifty-six years for thirty-five years, but in thirty-five years who’s going to care about BOSTON anyway?”

Matthew David Brozik

Not with the band.

Fifty-six years? Thirty-five years? What now? Well, remember that there are actually two termination provisions in the Act: Section 203 governs transfers of rights effectuated on or after January 1, 1978, providing that the transfer may be terminated in the five-year period starting after 35 years has passed. Section 304 deals with transfers executed before January 1, 1978, of works with copyright subsisting as of January 1, 1978; such transfers may be terminated during the five-year period that begins after 56 has elapsed from the date of the original securing of copyright in the work or January 1, 1978, whichever is later. (Maybe Congress should have put this provisions closer together in the law?)

So, indeed, if Ahearn acknowledged this change (even if he doubted the shelf life of BOSTON), then he was acknowledging the substitution of the 1978 agreement for the 1975 agreement, with the legal effect (as Scholz maintains) that all twelve songs may be reclaimed by him, Scholz, under Section 203, in 2015. Additionally/alternatively, Scholz argues, even if the 1978 agreement did not constitute a superseding grant, because the six songs on the second album weren’t fixed until 1978, Section 203 governs regardless.

Doubtless, there’s a motion for summary judgment on the horizon. After the [ahem] Foreplay.

 

 

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