Sony Music Entertainment Inc.'s refusal to let musicians reclaim copyright ownership under the Copyright Act is “lawless behavior,” a trio of musicians said in a putative class action lawsuit.

Named plaintiffs David Johansen, a.k.a. Buster Poindexter, John Lyon, a.k.a. Southside Johnny, and Paul Collins say Sony routinely labels artists’ music as “work made for hire,” effectively blocking music creators from a legal right to rescind their decision to sign over the rights to their work 35 years after publication.

Their complaint, filed Feb. 5 in U.S. District Court for the Southern District of New York, could clarify the definition of “work made for hire,” and the ability of music publishers to stop artists from regaining control of their work.

Section 203 of the Copyright Act of 1976 lets creators revoke a grant of a copyright between 35 and 40 years after a post-1978 publication. It was designed to help artists reclaim work initially licensed before its true value could be established. But it doesn’t apply to work-for-hire arrangements.

Copyright lawyers told Bloomberg Law that no precedent-setting court has decided whether sound recordings can be considered works for hire. Intellectual property attorney David Leichtman said cases challenging the issue have settled, largely because labels don’t want to risk a precedential ruling rejecting their stance.

“What they’re trying to do in this lawsuit is force the labels’ hands, to stop making this argument, because some smaller artists probably just capitulated,” Leichtman said. “It’s probably in the best interest of recording artists to get an answer.”

Defining ‘Work For Hire’

Section 101 of the Copyright Act defines “work made for hire” as work either created by an employee as part of a job, or as “specially ordered or commissioned” under one of nine categories. The musicians pointed out in their lawsuit that sound recordings aren’t listed as one of the categories. But music publishers have argued compilations are, and that music albums qualify.

The act defines compilation as “a work formed by the collection and assembling of preexisting materials or of data that are selected, coordinated, or arranged in such a way that the resulting work as a whole constitutes an original work of authorship.”

Robert W. Clarida of Reitler Kailas & Rosenblatt LLC said the dispute “has been simmering for a long time” and that “someone was bound to test it in court.”

“There’s a good argument, if not a slam dunk argument, that an album is a type of a compilation,” Clarida said, adding that most record contracts label the music produced as works made for hire.

But Leitchman disagreed, saying “it’s very clear that sound recordings like albums created by an artist don’t fit” within definitions of compilation or collective work. Putting “work for hire” into a contract doesn’t change that, he said.

“My view is the artists have the better argument,” he said.

Seeking Class Status

The class-action nature of the lawsuit, which seeks statutory damages for copyright infringement on behalf of all artists who tried to terminate Sony’s rights, could pressure the court to weigh in on the longstanding dispute.

Differences in artists’ contracts with labels would make class certification difficult, Clarida said, because the potential class members wouldn’t have identical claims.

Leichtman noted that “not a lot of copyright class actions in the U.S. are filed, let alone certified,” but said dissimilar contracts didn’t preclude certification. He said the court could create subclasses within the lawsuit to account for the differences.

“The variations in the contract probably don’t make a difference to this legal determination,” he said. “I think there certainly is a shared fundamental question.”

Sony didn’t respond to a request for comment.

David Clair Kistler Jr. of Blank Rome LLP represents the plaintiffs.

The case is Johansen et al v. Sony Music Entertainment Inc., S.D.N.Y., No. 19-1094, Complaint 2/5/19