The Reids are seeking all of WMG’s “gains and profits” attributable to the infringement in an amount to be proven at trial or $2.55 million in statutory damages representing $150,000 for each of the 17 registered works they claim are being infringed. In addition, they're asking for damages for all sound recordings infringed “up to an[d] including the date of trial”; a court declaration that WMG’s retention of these copyrights violates the Copyright Act of 1976; “an accounting of all gains, profits and advantages derived from WMG’s acts of infringement and other violations of law”; and costs of the suit, including attorney’s fees.
The 12-page complaint includes the notice of termination served to WMG on Jan. 7, 2019, two years prior to Psychocandy’s effective date of termination on Jan. 8, 2021. Also included is the Dec. 9, 2020 letter they received from Melissa Battino, vp business affairs at WMG-owned Rhino Entertainment Group, in which Battino stated the notice was “not effective to terminate WMG’s U.S. rights,” arguing that the band “never owned any copyrights in the recordings” according to copyright law in their native U.K. She additionally wrote that serving the termination notice could amount to a “breach” of the band's original recording contract.
Battino's letter went on to state the termination matter was subject to the discretion of the British courts, citing the so-called “Duran Duran” decision of 2016, in which the '80s new wave stars lost their bid to terminate Sony Music’s publishing copyrights over some of their most popular hits. In his decision, Judge Richard Arnold on the UK High Court of Justice ruled that termination notices filed by the band were “voided” because those publishing agreements were subject solely to British law, which has a copyright term of the life of the artist plus 70 years.
But Evan Cohen, the attorney representing The Jesus and Mary Chain in the current case, argues that WMG’s position on the U.K. issue conflicts precedent set by artists who have successfully filed termination notices. "I don't think it has to do with this British law position, because other British artists have gotten their masters back,” he says, citing Gang of Four as an example of a British act that has successfully terminated WMG’s copyrights over their work.
“Basically what it comes down to is Warner Music is taking the position that British law controls what happens with our termination law," Cohen adds, "which has never been the case."
The Jesus and Mary Chain isn’t the first artist Cohen has represented on the issue of copyright termination. In Feb. 2019, the attorney filed a similar lawsuit against both UMG and Sony Music on behalf of a group of artists including John Waite, Joe Ely, David Johansen, John Lyon and Paul Collins (Waite and Ely sued UMG, while Johansen, Lyon and Collins sued Sony Music), whose termination notices were ignored by their respective record companies. (Those cases are still pending.)
In that complaint, Cohen argued that record companies have been hiding behind a clause in the Copyright Act that excepts anyone who creates “works made for hire” -- i.e. works created by an employee in the scope of their employment -- from the right to file termination notices. In the past, artists have fought back against the common interpretation by record labels that sound recordings should be counted as works-for-hire, including the Eagles frontman Don Henley, who led an effort to strike back at a provision contained in a 1,740-page bill that declared them as such in the late 1990s. But while that effort ultimately led Congress to re-word the provision in question, the issue remains a legal grey area.
Among them is anyone who created "works made for hire," essentially a work prepared by an employee within the scope of his or her employment. In such a situation, it's the employer seen as the statutory author of the work. The newest lawsuits state that UMG and Sony are regularly taking the position in response to termination notices that recordings are "works made for hire" because of contractual language in recording agreements.
WMG has traditionally “not been as militantly against reversions” as the two other major label groups, says Cohen, though it has still been targeted by such lawsuits in the past. In February of this year, country singer Dwight Yoakam sued the company for refusing to hand back the rights to his early recordings.
"Warner Music has really only taken this position, I would say, five or six times in the past five years, and the rest...they let it go without really saying anything about it,” says Cohen, stating that Los Angeles rock icons X are one WMG act that has successfully terminated the company’s copyrights over their work.
In defiance of WMG’s refusal of their first termination notice, The Jesus and Mary Chain have since filed two others -- one for works released between 1987 and 1992 (which have an effective date of termination no later than 2025) and another for two additional recordings put out in 1984 (with an effective date of termination of June 10, 2023). Through the new lawsuit, it seems they are hoping to strike a broader blow against the major record labels in favor of artists' rights to reclaim their old copyrights.
“Unless enjoined from engaging in like behavior in the future, WMG will be allowed to destroy the value and salability of the subject sound recordings, in direct contradiction of the second change guaranteed by the Copyright Act,” the complaint concludes.
Warner Music Group did not respond to Billboard’s request for comment by the time of publishing.