Free speech

I GOT YOU BABE?

There is a battle afoot between Sonny Bono’s widow and Sonny’s ex-wife Cher.  And ironically, it’s a fight about how the Sonny Bono Copyright Term Extension Act might apply the terms of the Sonny and Cher’s divorce settlement.

Let me unpack this a bit.  As part of their divorce settlement, Sonny and Cher agreed that Cher would be entitled to 50% of the royalties from his compositions.  So far so good.  But now Sonny’s widow, Mary Bono, has invoked a passage from the U. S. Copyright law that allows the heirs of an author to terminate a grant of a copyright executed before 1978.  Cher has filed a lawsuit seeking to block the termination.

It’s a tricky question and the resolution isn’t clear.  On the one hand, the Copyright Law is seemingly clear – if the grant occurred before January 1, 1978, it is “subject to termination.”  But on the other hand, another provision of the same law says:

“Termination of a grant under this subsection affects only those rights covered by the grant that arise under this title, and in no way affects rights arising under any other Federal, State, or foreign laws.”

Sonny and Cher’s divorce was governed by California, a community property state, so there is an argument that she was entitled to the 50% share as a matter of law, which would arguably trigger the provision above.  But (there’s always a but) the transfer in this case wasn’t ordered by the court. It was a negotiated settlement, so maybe that provision doesn’t apply.

There’s also an argument that an assignment of royalties isn’t technically a grant of a copyright, so the termination provision doesn’t apply by definition.  In other words, Sonny didn’t technically hand over the copyright to Cher, he simply agreed to pay her whatever royalties he earned from the songs.  And that makes sense in that Cher couldn’t do anything with the copyright itself as she could if she’d been granted the copyright.  For example, Cher can’t assign the copyright to anyone, whereas she could, had Sonny assigned the copyright (as opposed to just the royalties) to her.

We’ll see what happens here, but it would be nice to have some clarity.  Cher and Mary would each like it as well no doubt.