Who's Playing Our Song?

Lessons from a copyright case on a convention and visitor bureau's use of co-written music

In a recent case, the United States Court of Appeals for the Seventh Court in Chicago reversed a lower-court decision against the Lake County (Ind.) Con­vention and Visitors Bureau in a music copyright infringement case.

In the original trial, the bureau was found to have violated the copyright of songwriter Cheryl Janky, who alleged she was the owner of a doo-wop composition that had been used by the CVB at its visitors center, on its phone system and in some ads. Janky contended she was the sole composer and had never given the bureau permission to use it.

The bureau responded that Janky was only a co-author and it had obtained a license to use the song from the co-lyricist, Henry Forag, who was not a plaintiff or party to the case. Nonetheless, the trial court entered a partial judgment in favor of Janky, deciding she was the sole author, and a jury awarded her damages of more than $100,000.

Round Two
On appeal, the bureau argued that the judgment was improper given the evidence of co-authorship. In a split decision, the appeals court reversed the partial judgment and sent the case back to trial so the judgment could be entered in favor of the bureau. While the dissenting jurist felt there was never any intention to create a joint work, he said the case should go back for retrial.

The appellate court majority found that Janky was a co-author along with Forag, who had granted the license to the bureau. Both were members of the same musical group, Stormy Weather. Forag heard through the grapevine that the bureau was looking for a song to praise the county and suggested that his band be given the chance to do it.

Janky contended that Forag was not a co-author and that she had never intended to give him credit as such. Rather, she stated that she placed his name on the copyright registration form merely as an "indication of her gratitude" and to demonstrate that she appreciated the support he had provided in assisting in the rewrite and adding extra lyrics. But Janky also had filed a document with ASCAP (the American Society of Composers, Authors and Publishers) stating that Forag did, in fact, have a 10 percent ownership share in the song. At trial and on appeal, Janky said it was a "mistake" to have done so and she was the sole author. The appellate court disagreed.

The Upshot
Copyright is based on two easy premises: that a work is original to the creator and that it is in a format that can be copied. In this case, there is no question that the song was original and had been copied. The bureau had purchased some 1,500 copies. The argument here really related to whether the bureau had a proper license to use the song.

Under copyright law, "joint authorship" exists where there are co-owners of the copyright of the work. They have undivided interests in the work, even if the percentage of ownership varies. And either owner can use or license the joint work without the permission of the other.

When does a piece qualify as a "joint work" to satisfy the copyright law definition? The appellate court said there must be an intent to create a joint work, and each individual must contribute independently copyrightable material. The court added that the testimony demonstrated a clear intent to make the song a joint effort, despite the recantation by Janky that it was all just a mistake. The key is the intent of the parties at the time the work was created.

The moral of the story for meeting professionals is, if you want to use someone's work, make sure you have the permission to do so by all who claim ownership.