Notes & Comment
Vol. 2005, No. 2
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Copyright
Court to “King of the Road” Heir: Take a Hike!
Roger Miller was an award-winning country music singer and composer who produced many hit songs over the years, including one of the best ballads of all time and his most famous song, "King of the Road":
Trailer for sale or rent, rooms to let fifty cents
No phone, no pool, no pets, I ain't got no cigarettes
Ah but, two hours of pushin' broom buys a
Eight by twelve four-bit room
I'm a man of means by no means, king of the road…
Miller died in October 1992 and, besides his music legend, left behind a wife, seven children and copyrights to his many compositions. Sadly, those copyrights became the subject of a money dispute between one of Miller's daughters and the rest of his surviving family. Broadcast Music, Inc. v. Roger Miller Music, Inc., Civ. No. 02-5766 (U.S. Court of Appeals for the Sixth Circuit, January 28, 2005). It's always unfortunate when such private affairs become a matter of public record -- well, maybe not always -- but the case does help us sort through ownership rights of surviving family members to "renewed" copyrights when famous artists, such as Roger Miller, leave us for other things.
Family Feud
In his will, Miller transferred his copyrights to his wife. But many of his songs were written prior to January 1, 1978 which meant, under then-current U.S. copyright law, that they enjoyed protection for 28 years from the time the copyrights were initially secured. After that, the copyrights were subject to renewal for another 67 years, which was accomplished either by filing a renewal application or by automatic renewal. (This renewal scheme was replaced for copyrights arising on or after January 1, 1978. Now, copyrights created by individual artists like Roger Miller last during the life of the artist, plus 70 years. See, 17 U.S.C. §302(a)).
As it turns out, what Miller really transferred to his wife was his right to the initial pre-January 1, 1978 copyrights (the initial 28 years), and the prospect of renewing those copyrights sometime down the road (for a subsequent 67 years).
In Broadcast Music, Inc. v. Roger Miller Music, Inc., one of Miller's seven children claimed that upon renewal of his pre-January 1, 1978 copyrights, Miller's widow and seven children each owned and were each entitled to 12.5% of the royalties generated by those copyrights (a 1/8th share of 100%). Roger Miller Music, Inc. ("RMMI"), a privately held company that owned the copyrights, as well as the artist's widow and his other six children (all of whom had assigned their interests in the Miller copyrights to RMMI) maintained otherwise; they argued that copyright law gave the widow a 50% share, and gave the surviving children equal shares of the remaining 50%. Under this calculation, the disgruntled daughter would have received 7.14% of the royalties (a 1/7th share of 50%).
Copyright law enables authors or their heirs to recapture ownership to copyrights that had previously been assigned. For example, 17 U.S.C. §203 gives authors or their heirs the right to revoke, after a certain lapse of time, some copyright assignments made by an author on or after January 1, 1978 and to reclaim ownership of those copyrights. Similarly, 17 U.S.C. §304 authorizes authors or their heirs to revoke copyright assignments with respect to "renewable" copyrights (those secured prior to January 1, 1978). The assignment "revocation" process in Sections 203 and 304 was designed to give the author or the heirs a second bite of the apple, to recapture IP ownership of a given work if, for instance, it has appreciated in value since the original assignment. In either case, after the author is dead, the “terminating” heirs act as a “class” and at least a majority of their "termination interests" are needed to revoke the prior assignment. When there is a surviving spouse and children, the spouse is given a 50% termination vote, and the children are given equal shares of the remaining 50% termination vote. This "termination" scheme became critical to the case's outcome.
Statutory Construction
Caught in the middle of the Miller family dispute was Broadcast Music, Inc. ("BMI"), a performing rights entity that had been authorized to license the use of Roger Miller's copyrights and pay royalties to RMMI and the holdout child. When a dispute broke out around the one daughter's proper share of royalties, BMI filed suit to resolve whether she owned 12.5% of Roger Miller's renewed copyrights or 7.14% of them. The trial court ruled in the daughter's favor, but the Sixth Circuit reversed in a 2-1 decision, holding that copyright law only granted her a 7.14% share of the royalties.
The Court arrived at its decision acknowledging there was no specific wording in the statute that compelled such a result. The copyright law at issue in Broadcast Music, Inc. v. Roger Miller Music, Inc., (17 U.S.C. §304(a)), didn't allocate "renewable" copyright ownership among a surviving spouse and children. However, the Court conducted a detailed analysis of the parallel "termination" provisions of the copyright law, 17 U.S.C. §203 (termination of copyright transfers made after January 1, 1978) and 17 U.S.C. §304 (termination of transfers of "renewable" copyrights).
The majority concluded that principles of statutory construction supported a finding that the same allocation formula governing the heirs' decision to terminate assignment of a "renewable" copyright also extended to dividing ownership of a "renewed" copyright among those same heirs. In short, if the surviving spouse and children each were entitled to vote fifty percent shares, respectively, to terminate the assignment of a “renewable” copyright, they also owned the "renewed" copyright by those same percentages.
Judge Daughtrey, on the other hand, would have affirmed the trial court. In dissent, she wrote that if Congress had wanted to apply the same ownership allocation formula to "renewed" copyrights (17 U.S.C. §304(a)) as when authorizing termination of assignments of "renewable" copyrights (17 U.S.C. §304(c)), it would have done so. Since there is no such allocation formula in Section 304(a), the court must rely on the wording there and a prior U.S. Supreme Court decision construing an older version of copyright law, all of which suggested, to her at least, that the heirs are to be treated as one class, each with equal interests.
Summary and Conclusion
This entire sorry saga is worthy of a Roger Miller ballad: family members pitted against each other over money, no clear answers, even judges fighting judges (Judge Daughtrey accusing her colleagues of "fabrication" and "judicial activism").
As with many copyright cases, Broadcast Music, Inc. v. Roger Miller Music, Inc. turns on complex statutory construction and an exhaustive analysis of Congressional intent. Frankly, the farther down the road we travel, the less we'll see of "renewable" copyrights owned by individual artists, and disputes like this will soon be obsolete. Nonetheless, the case offered a novel question and required the Court to find a novel solution. Absent guidance from the U.S. Supreme Court or specific wording from Congress, who can ever say if a lower court decision that fills gaps in a statute is right or wrong? What can be said about the Roger Miller decision is that the Court considered the issues at great length and produced a thorough opinion that makes sense, seems right -- and solves a problem we aren't likely to see much more of.
© Matthew Joseph 2005. Law Offices of Matthew Joseph, San Mateo, California, practices in the areas of intellectual property licensing, commercial real estate leasing, and corporate and business transactions. No legal advice is intended by the information provided herein and recipients should independently consult counsel before taking any action related to this subject matter.