Tag Archives: Boston

PLEASE TAKE NOTICE: BOSTON* just got real (Boston 3)

*Preliminary note: I know that the band BOSTON is not a party to Ahern v. Scholz, but all the same I like thinking of this case as the BOSTON case, because it involves BOSTON songs, and I like typing BOSTON in all caps, so I hope you’ll forgive me this impertinence/indulgence.

What was until this week a simple federal copyright action is now being brought to the attention of the Attorney General of the United States (who might or might not have other things on his mind just now). Plaintiffs Ahern and Next Decade Entertainment have given notice to Eric Holder of the presence of a constitutional question raised in the pleadings of the suit. (For a refresher of the allegations, see this post and then this post.)

Holder? You brought ’er!

Holder? You brought ’er!

In turn, the United States District Court for the Southern District of New York has issued an order certifying the matter to the AG. “In the parties’ Joint Pretrial Statement, filed with this Court on June 7, 2013,” the order reads,

the plaintiffs… asserted that, should the Court interpret Section 203 of the Copyright Act to allow termination of certain grants of copyrights, such application of the statute would constitute an unconstitutional taking of private property under the Fifth Amendment to the United States Constitution.

Whoa. That’s heavy. And that’s the sort of thing that 28 U.S.C. 2403(a) and F.R.C.P. Rule 5.1. mandates be brought to the attention of the AG.

The constitutional question as framed by Ahern:

Whether an author of musical compositions, written in whole or in part after January 1, 1978, whose copyright ownership had been transferred by him to a third party pursuant to a grant in the form of a five-year agreement entered into in 1975 encompassing all songs written by the author through 1980 [“Gap Works”], can invoke the termination of copyright assignment provisions of Section 203 of the Copyright Act….

Permitting Gap Works to qualify for the provisions of [S]ection 203… would result in [the plaintiffs]’ copyright ownership… being reduced from the fifty-six years set forth in Section 304… the law in existence at the time the 1975 [agreement] was executed… to only thirty-five years. Such a reduction… constitutes a violation of the Fifth Amendment to the United States Constitution in that it is an unlawful taking of private property without compensation to promote a public purpose (i.e., the public policy decision to afford composers the opportunity to reclaim their copyrights).

So now, if we’re lucky, we’ll get to read what Mr. Holder has to say about all this.

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.

 

 

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.”)

boston-more-than-a-feeling-1976-9On 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… Read More…