You probably read about the little copyright flare-up that accompanied the recent posthumous release of Michael Jackson’s new single, “This is It.” The song is, apparently, almost identical to an earlier song “I Never Heard,” co-written by Jackson and rock-and-roll legend Paul Anka many years ago but never released. Anka immediately gave an interview in which he was quoted as complaining that he hadn’t been consulted or given his permission, and saying “They have a major, major problem on their hands, [and] they will be sued if they don’t correct it.”
It looked pretty straightforward. When you think about it, though, it’s not at all clear what Anka was complaining about. Jackson’s estate, as co-owner of the copyright, is perfectly within its rights to license the distribution of the song, with or without Anka’s permission or even his knowledge — that’s what copyright co-ownership entitles you to. And secondly — I’m a songwriter, and if I found out that Sony Records released a song that I had co-written with Michael Jackson (ok, it’s a null set, but just suppose . . .), I’d get down on my knees and sing Hallelujah — estimates of the royalties that will accrue as a result of this distribution run into the tens of millions of dollars, and Anka, as co-owner of the copyright, is entitled by law to half of those. Now, I know that Paul Anka is a very rich man, but even very rich men, ordinarily, do not complain about making more money. What was he so upset about?
Apparently, what he was angry about was the omission of his name from the song-writing credits. Understandable, perhaps — but that’s one thing he does not have the right to under the statute — copyright owners do not (with some exceptions not relevant here) have the right to insist on “attribution” of authorship. So the whole thing was pretty strange — he was getting everything he was entitled to under the law, and not getting something he wanted but which he was not entitled to. it makes for a nice copyright hypothetical/exam question — if I didn’t think that some of my Intro to IP students are trolling on this blog, I’d use it myself.
Mark N. says:
They might have a problem if they intend to release the single internationally, though, since many countries do recognize a right of attribution.
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October 18, 2009, 6:50 pmChrisTS says:
Paul Anka and Michael Jackson lived at the same time?
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October 18, 2009, 6:55 pmDom says:
It does!? That is quite surprising. Wouldn’t both 50%-each co-owners need to sign off on any license, just like selling or renting out a co-owned piece of real estate? If not, let’s say that you and I co-write a song. What stops me from licensing it to myself exclusively—or to a company I wholly own—for 1¢ per zillion copies distributed?
I know there are statutory compulsory licenses, where you can record anyone else’s song for something like 9.1¢ per copy manufactured, but in that case the co-ownership seems irrelevant. Maybe this is where the issue of songwriting credit comes in?
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October 18, 2009, 7:24 pmOrin Kerr says:
On the other hand, complaining about not getting attribution did trigger a lot of news stories, effectively and inexpensively giving him attribution.
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October 18, 2009, 7:30 pmSean M. says:
Dom,
The short answer to your answer is that the law of jointly owned copyrights just doesn’t work like that. As case law has developed, the scope of that right means that each owner may grant a non-exclusive license to the work to others without the permission of the other co-owner, though the licensing co-owner is entitled to an accounting of profits where he will receive 50% of all of the money earned from the licensing agreement.
So in your example, the exclusive license to the company you own WOULD require the consent of the co-author, but not a non-exclusive license at the same rate. This is a risk of being a co-author. If your other author makes bad business deals, you’re stuck with it. Choose your co-authors wisely or modify the standard rules of joint authorship by contract.
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October 18, 2009, 7:58 pmCan't find a good name says:
My understanding is that the people associated with the Jackson estate who prepared the “This Is It” track for release (adding instrumentation and backup vocals) did not even realize that the track was a version of “I Never Heard” and that Anka was the co-writer of it (or, for that matter, that a female singer known as Sa-Fire had released the song as an album track almost 20 years ago).
Thus, if nobody had spoken up, all of the songwriter’s royalties would have been paid to the Jackson estate, rather than 50% to the Jackson estate and 50% to Anka.
I can’t help but wonder how careful the Jackson estate was about reviewing the tapes Jackson left behind. Michael Jackson wrote many songs, but he also recorded many songs by other songwriters. The fact that he made a tape of himself singing an otherwise unknown song does not necessarily mean that he wrote the song.
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October 18, 2009, 8:03 pmDom says:
Thank you for the explanation, Sean M.
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October 18, 2009, 8:10 pmBrett Bellmore says:
It’s not all that strange once you realize the operative phrase is, “entitled to under the law”, not, “entitled to”. The co-author of a work is, of course, morally entitled to attribution, no matter what the law might happen to say. And people are not required to conform their moral sentiments to the law. He was perfectly justified in being pissed off about the lack of attribution.
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October 18, 2009, 8:37 pmKirk Parker says:
Someone from the entertainment industry behaving strangely? Quelle surprise!!
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October 18, 2009, 9:04 pmbyomtov says:
The co-author of a work is, of course, morally entitled to attribution, no matter what the law might happen to say. And people are not required to conform their moral sentiments to the law. He was perfectly justified in being pissed off about the lack of attribution.
What’s this?? I agree with Brett. Amazing.
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October 18, 2009, 9:21 pmSuperSkeptic says:
If you all are correct on this attribution matter, the law might want to think about changing itself because getting credit for something you did (money aside) seems pretty important — particularly in the arts.
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October 18, 2009, 9:38 pmwm13 says:
I believe that the law of real property would be the same as the law of copyright here. Each tenant in common is seised of the entire property and, I believe, might grant licenses to whomever he pleases, though he must account to his co-tenant for the profits. In fact, a co-tenant might lease the premises, although a lease which is subject to the rights of the other co-tenant may not be that marketable.
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October 18, 2009, 9:45 pmBen Sheffner says:
Prof. Post:
Isn’t the reason Anka was complaining was that, until he spoke up, the Jackson estate was proceeding as though Jackson was the 100% owner of the composition “This is it”? Until Anka went public with his claim about “I never Heard,” the estate did not acknowledge that Anka was a joint author, and presumably intended to keep all of the “This is it” publishing revenue. You are, of course, correct that if Jackson and Anka were joint authors, either one of them (or their successors) has the right to issue licenses, with only the obligation to account to each other.
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October 18, 2009, 9:49 pmTweets that mention The Volokh Conspiracy » Blog Archive » Copyright Kerfuffle: -- Topsy.com says:
[...] This post was mentioned on Twitter by Peter Black, MJ. MJ said: The Volokh Conspiracy » Blog Archive » Copyright Kerfuffle: http://bit.ly/14A3um [...]
maplestar says:
As others have mentioned, the quote: “copyright owners do not (with some exceptions not relevant here) have the right to insist on “attribution” of authorship” only works if one limits the discussion to United States copyright law.
In Canada, subsection 14.1(1) of the Copyright Act reads (in part) “The author of a work has...the right, where reasonable in the circumstances, to be associated with the work as its author by name....”
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October 19, 2009, 5:10 amepeeist says:
Others have noted that there could be issues in other countries (e.g. maplestar, attributon in Canada) even if not in the U.S.
Also, as I think has been alluded to but without details, Anka and Jackson may well have had a contractual arrangement from their joint songwriting that modified the minimum obligations under copyright (e.g. that required attribution or consent of both or whatever).
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October 19, 2009, 8:53 amTeh Anonymous says:
Attribution is not legally required? Ah ha, now I know why sometimes the copyright pages of books contain a notice about the author’s moral right to be identified as the creator.
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October 19, 2009, 11:55 ammariner says:
If your students are foolish enough to troll on your blog, I hope they are rewarded accordingly.
(OTOH if they’re smart enough to lurk here ...)
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October 19, 2009, 5:55 pmMike Schilling says:
The consensus, if I’m following, is this: If David and I wrote a song together, I could change two words in it and re-issue it as my own work, and so long as I give David half the publishing, he has no recourse. I knew this stuff was unintuitive, but my sweet Lord! I’ll have to tell the old man down the road about this.
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October 19, 2009, 6:24 pmRodW says:
Hmmm. I can see why one might not need to attribute authorship at all — a radio station may not identify the artist, much less the writer, of every song it plays — but that’s not the same thing as falsely or incompletely attributing authorship, by saying “Michael” rather that “Michael and Paul”. It seems to me a lawyer with half a brain can find a plausible cause of action here without asserting a right to attribution of authorship.
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October 21, 2009, 2:42 amDon Franzen says:
I think the Professor is right as far as copyright law goes, but the cases have recognized a right to a credit for a songwriter whose name was ommited from an album and sheet music as a Trademark Law (Lanham Act) violation. See Lamothe v. Atlatnic Records 847 F.2d 1403 (9th. Cir. 1985). So Anka has the law on his side as to the credit issue.
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December 6, 2009, 12:11 pm