Like many musicians, Robinson is now attempting to exploit the law's termination protocol to reclaim rights to his works. Congress enacted this termination provision as it extended the term of copyright with the intention to give artists who had handed their rights over without much bargaining power another chance to enjoy the fruits of early career stage labors. Since enactment, artists such as Bob Dylan, Tom Waits and Tom Petty have filed termination notices. Robinson has too, but upon hearing from his ex-wife, he filed a lawsuit in March seeking declaratory relief that he wouldn't have to share reclaimed rights.
On Friday, Claudette Robinson filed counterclaims, alleging not only is she entitled to 50 percent of his compositions, but that her ex-husband has breached fiduciary duty, committed constructive fraud and anticipatorily breached the terms of a 1989 stipulated judgment made three years after their divorce.
The Robinsons were married for 27 years between 1957 and 1986. They had two children together. They sang together as part of The Miracles, but Claudette says that in 1964, she stopped touring to be able to take care of the kids.
Now, the question arises whether recaptured copyrights should be defined as community property or separate property under California family law.
According to Smokey's lawyers, the ex-wife isn't entitled to the music, and her notice to the contrary, could "jeopardize" his ability to secure new agreements exploiting his newly recovered rights.
"The 1976 Copyright Act expressly provides that these 'recaptured' copyrights belong to the author alone," wrote Fox Rothschild attorney John Mason in the March lawsuit. "Moreover, the 1976 Copyright Act precludes any transfer of those copyrights before the terminations themselves are effective. Thus, any transfer of such rights to any third party, whether [Claudette Robinson] or a music publisher, was barred by the 1976 Copyright Act, and is therefore null and void."
Obviously, attorneys for Claudette Robinson see things differently, saying that the famous singer's copyright "gambit" adds up to an attempt to get around the divorce agreement and hog additional royalties on songs that were created when the two were married. "Congress did not intend for or authorize the exercise of termination rights by authors against third parties to result in a windfall taking of copyright and state law interests from their former spouses," writes Katten Muchin attorney Zia Modabber in the counterclaims filed last week.
As part of the stipulated judgment, Smokey Robinson was given the right to administer and exploit his songs, but also promised he would "not maliciously or willfully take any action with a view of damaging" his ex-wife's interest.
As a result, it's alleged that the singer has breached his fiduciary duty by "willfully taking steps to usurp Ms. Robinson's valuable rights."
What's more, Claudette Robinson alleges that her ex-husband committed fraud and misrepresentation by failing to disclose his property during the divorce. She says that he didn't even identify such rights as his separate property. The counterclaim follows, "If Mr. Robinson's asserted rights are true, Mr. Robinson gained an unfair advantage over Ms. Robinson by his concealment of the full scope of his termination rights, recapture rights, and/or rights to sole ownership of the Community Musical Compositions."
Somewhere out there, other musicians are either filing termination notices or getting divorces. Although the Robinsons are the first to go to a federal court over this novel issue, they certainly won't be the only ones contending with it.
This story first appeared on THR.com