Co-Writing, Works Made for Hire and Happy Birthday Bob

(collage by Gwil Owen)

 It's Bob Dylan's 80^th birthday, and I wanted to mark the occasion by reviewing the complaint in one of the strangest lawsuits I have seen in some time. 

 Late last year, it was announced that Bob Dylan had sold his catalog (including the writer's share of income) to Universal Music Publishing Group for approximately $300 million, one of the highlights in  the recent frenzy of catalog acquisitions.  Shortly thereafter, on January 20, 2021, Claudia Levy, the widow of songwriter/psychoanalyst/theater director Jacques Levy, filed suit against Dylan and Universal for breach of contract, alleging that the Levy estate was somehow due some part of the proceeds that Dylan received from the sale because of the fact that Levy co-wrote ten songs with Dylan, including the majority of the songs on Desire ("Isis" is a personal favorite).

 

None of that is surprising; contractual disputes occur all the time.  What intrigued me is that Dylan's co-writing arrangement with Levy was a "work made for hire" agreement where Dylan not only owned Levy's share of the copyright, but that for copyright purposes, Levy was Dylan's employee – with no ability to ever recapture his share of the copyright.  Even more surprising is the fact that the contract specified that Levy would receive only 35 percent of the writer’s share of income from the songs, rather than the traditional 50/50 co-writer's share.

 

  The complaint goes on to list a litany of complaints against Dylan and his associates, but I remain most fascinated by the whole work-made-for-hire concept.  It seems so foreign to any traditional notion of co-writing – although the history of the music business is full of examples of artists and performers making "unique" deals with their collaborators – this one is fairly new to me.  Oddly, Dylan's Motion to Dismiss the claim, which was filed in March, refers to the work-made-for-hire arrangement as "standard." Maybe these deals made more sense back in 1975.  I wonder if he had a similar arrangement with Sam Shepard? I will say that I agree with Dylan's attorneys that the complaint is without merit – the contract clearly gave Dylan the right to assign the copyrights and the deal doesn’t disturb Levy’s continued income stream.  It doesn't look as if the court has ruled on the. Motion  yet.  

 

 Anyway, happy birthday, Bob.  We're lucky to be living in the same time as you.  

 

 

 

 

 

Bob Dylan, Cliff Richard and UK Copyright Law

I have been reading some interesting articles lately about the changes in English and European copyright law and how different copyright owners have dealt with them.  Until recently, British law provided that sound recordings entered the public domain 50 years after their initial release.  I sort of noticed that the last time that I was in the HMV Store in London and saw a number of dodgy-looking CDs featuring early jazz artists and rock and roll from the 1950s.

            It appears that artists and record companies led an appeal to change the law.  Their symbolic leader was Sir Cliff Richard, who became a figurehead for the new law much like Walt Disney did for copyright extension in the United States.  As Evan Marshall writes in Record Collector "and so it came to pass that Cliff's law is about to take effect and this year should see a change to the legislation governing copyrights which extends the protection to recordings from 50 years to 70 years."

            To dig a little deeper, artists like the Beatles, Bob Dylan and the Rolling Stones essentially escaped by the skin of their teeth.  For example while the much bootlegged Beatles recordings from the Star Club, the Decca auditions from 1962, the Beat Brothers recordings and even the single "Love Me Do" and "P.S. I Love You" are technically in the public domain in the United Kingdom, the remainder of their catalog is safe for another 20 years.

            The most interesting development from this UK copyright law change came from the Bob Dylan camp.  Recognizing that the new law would protect only recordings that were released within the last 50 years – and was not retroactive, Bob Dylan's label Sony released what looks to be its own bootleg, called The 50^th Anniversary Collection (in France and Germany it's called the Copyright Extension Collection Volume 1).  The collection is apparently comprised of four CD-R's with a paper insert listing the tracks.  I haven't seen a complete track listing but the set appears to include 24  outtakes from the Freewheelin' Bob Dylan plus some well-known live recordings like the Finjan Club and the so‑called Minneapolis Hotel Tape.  Dylan fans know that there is a treasure trove of this stuff floating around out there.

            This collection was allegedly limited to 100 sets per country so the purpose was not to make money.  Also the very process of releasing the material (some of which was truly unreleased and unavailable before) makes it available to the legendary enormous Bob Dylan bootleg audience.  Thus Sony must have felt that the security of copyright protection for these songs was worth letting them get into the hands of Dylan enthusiasts.  As such, this is a fascinating example of a copyright owner taking a calculated risk to be able to secure the benefits of copyright law.  I'm sure there will be more developments in this area.

Bob Dylan, Hootie and Derivative Works

I can admit that I am a hypocrite.  I hated that Darius Rucker song “Wagon Wheel” until I learned that Bob Dylan co-wrote it.  Actually, I still don’t like the song much but I was intrigued with the story behind the song.  According to different sources, Dylan created the work as an outtake from the recording sessions for the soundtrack to Pat Garrett and Billy the Kid in 1973.  Dylan expert Clinton Heylin titled the song as “Rock Me Mama”.

Years later, Ketch Secor (who obviously knows his Bob Dylan bootlegs) of the band Old Crow Medicine Show added new verses to Dylan’s riff.  In an amazing occurrence, Bob Dylan consented to the co-write, even with the 28 year time difference, and a song was born.

So legally what is “Wagon Wheel”?  One can’t tell from the publishing information but it meets the definition of a “derivative work” defined in the Copyright Act as “a work based upon one or more pre-existing works, such as … a musical arrangement … or any other form in which a work may be recast, transformed or adopted.”  A derivative work cannot be exploited without permission from the underlying copyright owner.  This is to be distinguished from a “joint work” which is defined as “a work prepared by two or more authors with the intention that their contributions be merged into an inseparable or interdependent parts of a unitary whole”.  This describes the typical co-writing situation where each author owns an indivisible share of the copyright.

Taking this a step further, a parody is a derivative work.  If the underlying author does not authorize the exploitation of the work, the parodist’s only defense is to argue “fair use” as Luther Campbell did in the “Pretty Woman” case, an important case with a holding that nevertheless still confuses me.

There are many different ways that songs can be created.  Think of Billy Bragg and Wilco adding music to the poems of Woody Guthrie or the recent album where  Bob Dylan, Jack White and others added music to lyrics found in one of Hank Williams’ “lost” notebooks.

Lawyers often get involved in the aftermath of these creations.  In the past I’ve had to deal with one co‑writer wanting to add a third co-writer’s contribution to a song after it was considered finished, a co‑writer of the songs in a musical who wanted to use the songs in a different setting and the thorniest issue of all, a co‑writer who wanted to “undo” a co-written composition.

All of these issues present challenges and also make the study of the different forms of collaboration and the legal repercussions endlessly fascinating.

When I Paint My Masterpiece

Bob Dylan continues to fascinate me on so many levels. Several years ago I wrote about (and tortured my Copyright Law students with) the story of how Dylan had apparently ‘appropriated’ large chunks of the lyrics to some of the songs on his 2001 album Love and Theft from Japanese writer Junichi Saga.( http://tripaldredgelaw.blogspot.com/2008/11/what-does-bob-dylan-have-to-do-with.html). A couple of weeks ago, I read an article in the New York Times that revealed that several of Dylan’s paintings in his current gallery show at New York’s Gagosian gallery were actually copied from photographs taken by such well know photographers as Henri Cartier-Bresson and Leon Busy.

As always with Dylan, I am not sure what to make of this. Is it copying? It is plagiarism? Is it copyright infringement? Is it all protected fair use?

It turns out that the Gagosian Galley which is hosting the Dylan show is the same gallery that was sued along with artist Richard Prince, another artist whose work fascinates me, for copyright infringement based upon Prince’s work. Apparently, the defendants lost a summary judgment but the case will surely be appealed. (Cariou v. Prince, et. al., no 08-civ-11327).I have been really interested in this and the whole debate between attribution and copyright infringement in art and I wish I had more time to study it. This is endlessly fascinating stuff.