McCartney's Second Bite at the (Recording Co.) Apple

In a previous post, discussing Paul McCartney's decades-long gripe regarding songwriting order attribution (to make-up a phrase), I made note of McCartney's net worth ($660 million) to anchor the essay in reality:  the world's most famous living songwriter (and the second wealthiest) still nursing a long-held grievance over when his name should lead and follow when referenced as a tandem with deceased Beatle John Lennon that is more ego and PR-driven than money-driven. Notably, from the source estimating McCartney's estimated net worth, the CNN Money author speculated that McCartney's new worth will climb higher than otherwise normal because we are entering a time-window where many performing artists are (attempting) to reclaim the copyright in the original sound recordings used on the Beatles, Wings, and McCartney solo albums.  The termination and reversion provisions in the 1976 Copyright Act have been subject to quality academic scholarship, and at the least, is worth noting here for (presumably) a predominantly lay audience.

As Congress and the various committee members worked for well-over a decade on what eventually became the 1976 Copyright Act, replacing the 1909 Copyright Act, the contractual sins committed in the popular music industry came home to roost (to a degree) - sins too numerous to recount.  Motivated in part by the inadvertent loss of copyright protection through renewal failure,^[1] and the arguably unconscionable recording contracts utilized by record companies (many of which forced assignment of copyrights and the subsequent sound recordings resulting from studio session work), Congress inserted two termination and reversion provisions in the 1976 Copyright Act in an attempt to (partially) ameliorate these problems that often economically prejudiced the authors/creators of the original work(s).

The first termination/reversion provision appears at 17 USC Sect. 203, which allows an author to terminate grants of copyright assignments and licenses that were made on or after January 1, 1978, the termination being effective no sooner than 35 years measured from the date of grant (or publication). As is clear, that section of the Act addresses works created after Jan. 1, 1978, the effective date of the 1976 Copyright Act that carried with it changes in the term of the copyright (life of author + 50 years -- and which is now life + 70 years) and the removal of the renewal provision.

The second termination provision appears at 17 USC Sect. 304, setting forth the timing of a termination of a work so long as the underlying copyright was in its initial 28-year period or its renewal (final) 28-year period existing on the effective date of the 1976 Copyright Act (Jan. 1, 1978), so long as the work was not a "work made for hire" (WMFH).  The end-point of the assignment/licensing term is measured as 56 years from the original from the day copyright was secured (or Jan. 1, 1978, whichever is the latest in sequence.

The enforceability of either provision is subject to a pre-condition that the author meet several specified requirements in the request for termination.

For McCartney, and assuming proper notification is perfected, the likely sequence for McCartney's termination and re-capture rights under Sect. 203 (35 years) appears to be:

• 2013 - songs from the 1978 studio LP London Town
• 2013 - songs from the 1978 compilation LP Wings Greatest (including four new/previously unreleased tracks + "Live and Let Die" which had appeared only on the Bond film soundtrack of the same name)
• 2014 - songs from the 1979 studio LP Back to the Egg
• 2017 - songs from the 1982 studio LP Tug of War (featuring hit single duet with Stevie Wonder, "Ebony and Ivory")
• 2018 - songs from the 1983 studio LP Pipes of Peace (featuring hit single duet with Michael Jackson "Say, Say, Say")

More importantly, if history is any indication, McCartney's termination and re-capture rights under Sect. 304 (56 years from original) for the original Beatles catalog (owned by Apple Records) begins in 2019, and continues sequentially thereafter for the next seven years into 2026.  Given the unprecedented singles-chart ubiquity that The Beatles enjoyed upon their early arrival in the U.S.,^[2] corresponding to the enormous popularity of The Fab Four, when McCartney is able to get his paws on The Beatles catalog, I fully anticipate several packaging options (without the original album artwork, which is itself separately copyrighted, most likely by the record companies).  Thus, the firmly-rooted speculation by CNN that soon (very soon), McCartney will become even wealthier through the additional exploitation of the The Beatles back-catalog (subject to the accounting owed by McCartney to the other Beatles and/or their estates).

Footnotes

1. Under the 1909 Copyright Act (immediately prior to implementation of the 1976 Copyright Act), a copyright was initially registered for a 28-year term and subject to a final 28-year renewal term. However, more often than should have happened, the original registrant (not the creator) would allow the original term to expire without renewing the term and without notifying the creator of that decision, thereby effectively preventing the creator from capturing the final 28-year term for further exploitation. This problem became particularly acute with the development of home video market as a channel for sales of feature films and syndicated television shows and the media-technology-format changes in the music industry (from LP to cassette and 8-track and then CD). Without securing the final 28-year term, both the company and the artist lost out on revenue, and opportunistic media companies could capitalize by re-packaging material no longer blocked by copyright protection. 2. In the Billboard Magazine Hot 100 singles chart issued for April 4, 1964, The Beatles held all five positions atop the Hot 100 chart: No. 1 - "Can't Buy Me Love"; No. 2 - "Twist and Shout"; No. 3 - "She Loves You"; No. 4 - "I Want to Hold Your Hand"; and No. 5 - "Please Please Me".

Squabbles: Lennon/McCartney or McCartney/Lennon - And Does It Matter?

In the most recent edition of Esquire magazine, Sir Paul McCartney reflects on a long and storied career as a singer-songwriter and performer for The Beatles, with Wings, and as a solo artist.  Although McCartney is reportedly the second richest recording artist (and richest male), having a net worth estimated at $660 million, many may find it surprising that McCartney cares about the songwriting credit order attributed to The Beatles songs McCartney co-wrote with fellow Beatle John Lennon. In the two creative-creator centric intellectual property disciplines (copyrights and patents), the listed order of copyright owners or patentees is legally irrelevant concerning the separate rights of the owners/patentees.

For a copyright, the co-writers/co-owners individually enjoy all the rights set forth in 17 U.S.C. § 106, so that any, all, or a subset of all co-writers/co-owners may exploit the work by further reproductions, etc. Likewise, for a patent, each co-inventor may "practice" the invention (e.g., manufacture) or license the subject matter to another party.

However, the differences lie in what is owed to the co-creators upon successful exploitation.  For a copyright, each co-writer/co-owner owes the other co-writers/co-owners an accounting of the profits generated through the right(s) exploited (or be subject to litigation).  Conversely, for a patent, each co-inventor may separately make or license the subject matter without accounting for any profits to the other co-inventor(s).

So why the fuss from McCartney concerning whether a song is identified as a Lennon-McCartney work or a McCartney-Lennon work?  In the grand scheme, the publishing royalties will be no different - every penny will still be divided between McCartney and Lennon's estate.

As with many similar issues, there are multiple considerations at issue.  Ego is rather obvious - upon Lennon's murder, the other co-writer was no longer in the picture.  Yet, Lennon's estate (via Yoko Ono), and a rather divisive ego at that, blocked several attempts by McCartney to correct a perceived error in the attribution order.

As McCartney recalls, early on, The Beatles and management agreed that any song predominantly written by one and brought to the other for "polishing" or "completion" would be specifically attributed in the album liner notes as [predominant writer] hyphen [polisher].  However, this preferred nomenclature convention did not materialize, and rather the alphabetical Lennon-McCartney label was the go-to form of songwriting attribution.

Upon Lennon's death, and in subsequent years (e.g., The Beatles Anthology Series), McCartney tried to reclaim this preferred naming convention, only to be obstructed by Ono.  McCartney identified the hit single "Yesterday" as a good example, noting that Lennon had absolutely nothing to do with writing the song, yet, the song is attributed to Lennon-McCartney and not to (McCartney's preference) McCartney-Lennon.

Related to issues of ego is perception, such as the public's perception that attribution order has significance.  It is likely that is the reason the individual Beatles agreed to the songwriting naming convention identified above is because of their own naive (mis)conception of the significance of naming attribution order.

Like many of the songwriting tandems in popular music over the last 50 years, such as Jagger-Richards (The Rolling Stones), John-Taupin (Elton John), Simon-Garfunkel, Plant-Page (Led Zeppelin), Simmons-Stanley (KISS), and Bon Jovi-Sambora (Bon Jovi), the first mentioned person seems to capture much of the songwriting attention.  This is probably due to an issue not particularly noticed (the primacy effect) - the strongest impression made on the mind of a viewer/reader based on the first item listed.

However, most interestingly, McCartney points out a legitimate gripe regarding technology.  In particular, McCartney notes that when an individual downloads, streams, or a song selected from an existing digital library, often the display is too small to fully display multi-writer attribution (or does so intermittently).  Consequently, using The Beatles as an example, on a smartphone or iPad display, The Beatles song "Yesterday" may be attributable only to John Lennon or John Lennon (and perhaps) Paul McCartney a few seconds later. Thus, at least in McCartney's view, younger generations may be misinformed or misled as to the appropriate songwriting credits, or frustrated by the bounce between one co-writer and the other(s) co-writer(s).  Thus, younger generations may be deprived of some knowledge, history, and searchable keywords that could link-up Lennon-McCartney with other valuable or culturally significant songs.

As someone who enjoys trivia and completeness of information, I can sympathize with McCartney's lament as a threshold matter.  However, given the younger generations Internet acumen, it seems unlikely that a user would not have such information readily available in just a few clicks or taps.  Alternatively, younger generations may simply not care enough to want to know/learn about the artist, esp. in an age when popular music is more disposable than ever before.

While McCartney's concerns possess some merit, the degree of import seems rather low.  Publishing royalties remain unaffected by the naming order; and the fame of The Beatles nearly negates any inverted (or lack of) attribution, as many folks will supplement their listening experience by browsing for information abut the artist (e.g., via Wikipedia).  As with so many things surrounding the surviving members of The Beatles and managers of the Lennon and Harrison estates this really descends into a Paul v. Oko battle of wills, wits, and strong-willed personalities.