My mom gave me an AM radio with an earplug when I was 10. There I discovered summer pop music and the positive girl vibe of Lady Marmalade. While Patti LaBelle’s 1974 earworm of a performance made Lady Marmalade famous, the lyrics and music were created by co-songwriters Bob Crewe and Kenny Nolan. Nolan wrote numerous famous songs during the 1970s as a singer-songwriter, and co-writer with Crewe and other songwriters. Many of the songs, including Lady Marmalade and My Eyes Adored You, the Frankie Valli chart topper, were huge hits.
Nolan has a simmering dispute with Sony/ATV Publishing and various other music publishers (“defendants”) over copyright ownership, royalties, and reporting and paying Nolan his earned music publishing income. In 2016 Nolan became aware that the defendants had acquired his music publishing rights and had not been accounting for or paying him his music publishing income. He sued the defendants later that year with, the case ending prior to discovery, dismissed without prejudice. Now it appears Nolan’s dispute is boiling over again.
In 1973 Nolan assigned his rights to 77 co-written songs to Crewe (“Nolan-Crewe Songs”) under a “Split Publishing Agreement” for 50% of the net income from music publishing from the Nolan-Crewe Songs. Crewe, who was an early mentor to Nolan, in turn licensed the 77 songs to publisher Stone Diamond. Nolan had assigned 53 additional songs (“Nolan-Coral Songs”) to a series of other music publishers finally leading to Coral Rock Music Corp. In some fashion both the 77 Nolan-Crewe songs and the 53 Nolan-Coral songs all ended up with Sony/ATV Publishing.
Music publishers are persons or companies that are responsible for ensuring that songwriters receive payment when their songs are used commercially. The songwriter “assigns” the copyright of their songs to a music publisher, who in return licenses the songs to third parties, monitors where songs are used, collects royalties, and provides statements of account and payments to the songwriters. Music publishers look for opportunities to obtain commissions for music and promote existing songs to recording artists, and to film and television producers. When screenwriter Baz Luhrman created Moulin Rouge! in 2001, the music director contacted Sony/ATV Publishing, or its predecessor, to obtain a license to create a derivative work (a modification of an existing work) from Lady Marmalade, to update the song for 2001, set it in Paris and sync it to Baz’s film.
Once Nolan became aware his songs were being handled by Sony/ATV Publishing and various other defendants, he sued them with a long litany of claims. The 2016 lawsuit was dropped without prejudice prior to discovery, but Nolan recently refiled on April 10, 2019. The new complaint alleges:
- breach of music publishing contract for failure to report foreign small performance and mechanical income and deposit to a suspense account, failure to report “black box” income, improper deduction of creditable foreign withholding taxes or net income taxes, improper deduction of administration fees, failure to report music publishing income “at the source”, improper allocation of music publishing income among musical composition written by other persons and those written or co-written by Nolan, and failure to report guarantees and advances as income when receive;
- a complete and proper accounting of all monies payable to Nolan;
- copyright infringement from exploitations taken by Defendants; and demands
- at least $20,000,000 in damages;
- rescission of the Split Publishing Agreement between Nolan and Crewe;
- restitution of all music publishing rights in the Nolan-Crewe Songs; and
- disgorgement of profits from Defendants.
All of the Nolan-Crewe Songs and Nolan-Coral Songs were published during the 1970s. Under current U.S. copyright law, a musical composition including music and lyrics is automatically protected by copyright for the life of the songwriter plus 70 years. In 1974 the duration of U.S. copyright law was more complicated. Under the U.S. 1909 Copyright Act, between January 1, 1964, and December 31, 1977, a musical composition had to be registered upon publication to have a copyright for the song. The duration of copyright during that period was calculated differently, namely copyright commenced upon registration and was protected for an initial term of 28 years and, upon the filing of a renewal registration, an additional term of 67 years. If the renewal registration was not timely filed, the song fell into the public domain. In 1992, the U.S. Congress granted an amendment to automatically extend the copyright of songs in their initial term for the additional term of 67 years.
Nolan alleges that the Split Publishing Agreement was only for the initial term of copyright due to a lack of a proper assignment of copyrights and therefore the defendants have infringed Nolan’s music publishing rights.
It is difficult to see how Nolan can overcome the language of the Split Publishing Agreement–
The term of this agreement shall be for the term of the copyright of the Compositions in the United States of America and throughout the rest of the world and for the term of any renewals or extensions thereof and of any derivative copyrights in the Compositions, in the United States of America and throughout the rest of the world.
* * *
… It is understood that no termination of this agreement shall diminish, alter or affect any right of Company in and to any Composition subject to the terms hereof.
Most of the riders and agreements in the Split Publishing Agreement were signed by Nolan, including agreements and riders that included language similar to the above language. Nevertheless, if defendants are found with unclean hands, Nolan may take back his music publishing rights and free his royalties from suspense accounts and black boxes which hold uncollected or unnamed royalties. This is the biggest problem facing the music industry.
PRO TIP: Digital music is worldwide and paid in tiny increments, so songwriters need music publishers with digital tools and worldwide reach and who take care to ensure their songwriters meta data stays connected to the song as it travels, so songwriters can collected mechanical and performance royalties worldwide.
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