STREET LEGAL: BABY DRIVER's Big Rights Problem
October 27, 2017 by Elaine Wyder-Harshman
Picture this: your heist movie has Jamie Foxx and Kevin Spacey in it. You chose the music even before the actors. You have spent millions of dollars on car chases. The movie has raked in over $200 million to date and just landed on Amazon and all of those lucrative VOD platforms.
But not so fast — somebody says you don’t have the rights to all of the music! What happened? If the case goes to trial, we will find out in Feld v. Sony, a suit for copyright infringement against the makers of BABY DRIVER. BABY DRIVER uses the T. Rex song Debora, written in 1968 by Marc Bolan. Bolan’s son Rolan Feld now claims that that Sony and others infringed on his copyright by using Debora without his permission. Sony maintains that it properly licensed the rights from T. Rex’s publisher.
Recapturing rights under the Copyright Act of 1976
The big question is whether Feld has the rights to the musical composition Debora that he claims. Copyrighted works registered before 1978 received protection for two terms: a first term of 28 years, and a potential renewal term, the length of which has been extended over time.
Congress has long recognized that artists have little bargaining power in the early years of their careers. To give authors and their families a second chance to benefit from the author’s creation, the Copyright Act of 1976 provides two ways to claw back pre-1978 copyrights that have been assigned to others. First, if the author died before the end of the first 28-year term, the author’s heirs could exercise the power of renewal and recapture the copyright by timely registering the renewal. Because this opportunity to renew often was missed by rights holders of all kinds, in 1992 Congress made renewal automatic. Automatic renewal, however, did not confer the same rights as a registered renewal.
The Act also provided a second opportunity for artists or their heirs to recapture pre-1978 copyrights during a five-year window starting 56 years after the initial copyright registration. With enough notice, the author or heirs can terminate the rights assigned to others, contracts to the contrary notwithstanding.
What happened to Debora?
The copyright for Debora was initially registered in 1968 by Marc Bolan, Feld’s father. Bolan then assigned all of his rights to a music publisher. In 1977, Bolan died in a car crash. Following litigation, the publisher signed the rights over to Feld in 2014.
Feld says that he learned that Debora had been used in BABY DRIVER only when Sony contacted him to seek permission to include the song in the soundtrack. After negotiations over copyright failed, he sued.
Sony denies that Feld holds any valid or enforceable rights, and relies on a license obtained from the publisher. Court documents reveal few details.
This case illustrates the perils of failing to license music integral to your movie as early as possible. If Sony and the other defendants failed to properly license the rights to Debora (and that’s a big “if”), it will cost them greatly, for several reasons.
First, the alleged infringement is substantial. Characters “Baby” and Deborah discuss and even sing the song in one scene, then listen to the T. Rex recording in the next.
Second, the movie’s financial success would lead to higher damages. To date, this $34 million-dollar film has grossed almost $225 million.
Finally, Feld would have considerable leverage in negotiating a settlement. In the worst-case scenario for Sony, Feld theoretically could enjoin further distribution of the film.
The takeaway: if a particular piece of music is essential for your film, take care of those rights as soon as is practical. Don’t risk it.
Only time and an exchange of documents will tell who has the rights. Many essential facts have not yet been revealed.
For example, when did Sony license Debora from the publisher? According to many accounts, Baby Driver director Edgar Wright decided on much of the music for his film early in development. It is possible that the song was licensed before the rights were given to Feld in late 2014.
It is difficult to see how Feld could have owned the rights to Debora any earlier. His theory that the rights automatically reverted to him is highly questionable. Nor could he statutorily terminate the publisher’s rights, as it has not yet been 56 years since registration.
Time will tell. Until then, I will be watching.
Elaine Wyder-Harshman is the Founding Partner of The Lens Legal Group LLC, a firm serving clients in the tech, creative, and financial industries. Elaine’s practice includes film finance and film production legal. You can contact her at firstname.lastname@example.org. Follow Lens on Twitter at @LensLegalGroup.
Disclaimer: The information in this column is intended for general information purposes only and should not be construed as legal advice.