Wednesday, May 18, 2022

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 Abstract

Excerpted From: Kevin J. Greene, Thieves in the Temple: The Scandal of Copyright Registration and African-American Artists, 49 Pepperdine Law Review 615 (March, 2022) (234 Footnotes) (Full Document)

 

KevinJGreeneThis Article hopes to shed light on and spark further exploration of an untold story in copyright jurisprudence--the scandal of a lax copyright registration system that has plagued Black artists with false copyright registrations, resulting in loss of copyright ownership. Perhaps no case illustrates the problem more than the story of Barrett Strong and his hit song Money (That's What I Want). The year was 1959. Berry Gordy founded the label (Motown Records) with an $800 loan. Barrett Strong wrote and performed the Money song, purportedly as a co-author with Motown founder Berry Gordy and another writer. The song became Motown's first big hit.

In 1959, Gordy or his agents at Motown registered the copyright with Strong, Gordy, and the other co-author. However, in “1962 ... Jobete Music, Motown's song-publishing company, filed an amended copyright with the instruction to remove Strong's name from the copyright.” Although Money has, over the years, produced millions in revenues and has been covered by artists like the Beatles and others, “the pianist and singer Barrett Strong, who first recorded [Money] and, according to records at the United States Copyright Office in Washington, was originally listed as a writer of the song, says that he has never seen a penny of those profits.” Strong did not receive copyright royalties on the hit song. Under the Copyright Act, Strong had three years to contest the change in authorship in the copyright certificate. However, at that time, the only way to discover the change would have been to go the Copyright Office in Washington, D.C. The Copyright Office does not notify authors about changes in authorship.

II. Copyright Registration: Myth and Magic

Copyright law embraces both magic and myth. Copyright registration is revered by courts as a kind of magical talisman. A copyright registration only costs forty-five dollars. However, that certificate is exalted and is prima facie evidence of ownership in the two-trillion-dollar copyright industries. Technically, copyright registration is distinct from copyright ownership under U.S. copyright law. However, this distinction collapses in light of industry custom and practice.

The myth is that copyright protection begins upon creation and fixation of a work within the subject matter of copyright law. Registration, according to the myth, is wholly voluntary. This fable masquerading as fact is easily exposed. For the copyright cognoscenti, the movers and shakers of Hollywood and the music industry, copyright registration is synonymous with copyright ownership and protection.

Entertainment transactions, including film and music rights acquisitions, transfers of IP, and investments, require due diligence. Copyright registration is a key focus in the due diligence and chain of title process: “[a] potential copyright transferee or assignee, or secured party relying upon collateral consisting of copyrights, will want to confirm that the underlying work was properly registered.” In copyright industry transactions, whether movie, sound recording, or videogame deals, registration is all-important and central to the quest for chain of title. Investors in entertainment projects, record labels, and film studios demand registration certificates for scripts, soundtracks, compositions, and sound recordings.

Registration is also key to policing creative rights and ownership in litigation. In an infringement or ownership litigation, copyright registration is the key to the courthouse. Without a copyright registration or refusal of registration by the Copyright Office, no infringement or ownership claim can be pursued. In infringement lawsuits, federal judges' reverence of copyright registrations borders on the realm of fetish.

Copyright registration is the engine of the U.S. Copyright Office, which sits in Washington D.C. as both the strong fortress of copyright and the temple of copyright protection. In 2019, the Copyright Office “issued more than 547,000 registrations and recorded 12,550 documents containing 457,731 titles.” Professor Litman notes that “[a]n accurate and complete registry of copyrighted works carries important public benefits, and the Copyright Office makes registration records publicly available.” Yet, the Copyright Office and the registration system is, metaphorically, an unguarded fortress. “For much of its existence, the Copyright Office had one job: registering and tracking copyright ownership .... [A task] critical to the proper functioning of the copyright system.” If the registration records lack credibility, this purpose is undermined.

Yet, despite the outsized importance of the almighty copyright registration certificate, little oversight of the copyright registration process exists. Given the lack of oversight and scrutiny of registrations, assurance that the records of the Copyright Office are indeed “accurate and complete” is illusory. Under the copyright registration system today, most registration applications will “graduate” to certificates as long as the work falls within the subject matter of copyright. The U.S. Copyright Office expressly disavows verifying authorship in the works it stamps its seal upon:

When, after examination, the Register of Copyrights determines that ... the material deposited constitutes copyrightable subject matter and that the other legal and formal requirements of this title have been met, the Register shall register the claim and issue to the applicant a certificate of registration under the seal of the Copyright Office.

The Copyright Act states that copyright registration is “not a condition of copyright protection.” However, this view is completely out of touch with the realities of the American copyright industries, where registration is an absolute prerequisite to copyright protection.

The United States Supreme Court recently resolved a circuit split about when copyright registration becomes effective in Fourth Estate. The ruling provides that registration of copyright only becomes effective when the Copyright Office issues a completed registration. As a result, artists who have not been granted a completed registration are deprived of a forum to prosecute copyright infringement or copyright ownership claims.

The fallout from the Fourth Estate decision has already impacted artists of color in profoundly negative ways. Hip-hop artists seeking to sue for copyright infringement were denied a federal forum when they failed to register the composition in a song called Walk It. Similarly, rapper 2 Milly had to withdraw his lawsuit against the maker of the Fortnite videogame series after the Fourth Estate ruling. Fourth Estate will wreak havoc on communities of color.

In this Article, building upon my work about African-American artists and copyright law, I examine how copyright registration, like other copyright formalities, historically left Black artists at a distinct disadvantage. The registration system, with its lax policing standards, facilitated the fleecing and expropriation of Black musical works. The treatment of Black artists, as a marginalized group with an outsized impact on the copyright industries, is illustrative of the need for broad reform of the copyright system.

Registration is complex. It is intimidating to artists and also expensive for multiple registrations. And the myth that registration is not needed pervades the artist community. Registration is also punitive. Failing to register leads to harsh consequences, including deprivation of statutory damages and attorney's fees, no presumption of ownership, and copyright termination headaches. The United States supposedly got rid of harsh copyright formalities. Yet such is not the case. Furthermore, given the importance of registration, standards are shockingly loose. The Copyright Office does not verify ownership or authorship. All these dynamics create a perfect storm for further marginalization of Black artists.

[. . .]

The African-American artist experience is full of stories of false registrations and nonauthors claiming copyright ownership as joint authors. The registration records of the Copyright Office lack any credibility. Only an audit would restore credibility. Further, Copyright registration should be made optional for artists.

As Professor Tehranian has noted, while sophisticated corporate owners take full advantage of registration, “[in] sharp contrast, unsophisticated creators, like individual artists, typically do not timely register their works and are often left with little except moral force and the uncertain threat of injunctive relief to enforce their [IP] rights.” Artists who choose not to register should not be deprived of a federal forum merely because they lack sophistication and access to information. The U.S. Copyright Office should move to a system closer to trademark law. The Trademark Office reviews every trademark registration, scrutinizing applications to ensure that the registrations comply with the Lanham Act.

Perhaps more importantly, given the disparate impact of registration on communities of color, the Copyright Office should undertake an audit of all music produced during the “race record” era of the recording industry to verify copyright ownership in sound recordings and musical compositions.

Until such time that the Copyright Office verifies ownership claims, there is little reason to have confidence in the registration system, a Wild West where there is no accountability. These undertakings would not be cheap and would be time-consuming. However, certifying the integrity and veracity of the copyright registration system, with its monumental impact on copyright ownership and wealth, should be paramount over cost and time spent.


John J. Schumacher Chair Professor of Law, Southwestern Law School, Los Angeles, CA, J.D. Yale Law School, Recipient, 2016 Vanguard Award for Innovation in Intellectual Property. Copyright, 2022.


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Vernellia R. Randall
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Professor Emerita of Law
The University of Dayton School of Law

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