Christopher Bird, at Wise Law Blog, posts about the dispute over
who is to blame for who owns last week’s biggest viral video sensation:
…It appears that Ark Music Factory, which produced the song for Ms. Black, and Ms. Black herself (represented through her mother) don’t agree as to who actually owns the copyright in the song. Ms. Black claims that her agreement with Ark gives her 100% ownership of the song; Ark claims that the agreement gives her ownership of the master recording only, but not the song or composition, and that copyright for the song should reside with them as they wrote the lyrics and arranged the music for Ms. Black.
Determining authorship is more difficult than determining the existence of work-for-hire, particularly in this instance. Is Ms. Black the primary author for singing and performing the song? Or is Ark the primary author for having written and arranged it? The legal ground here is, at best, unsteady.
An interesting precedent exists, however, in Janky v. Lake County Convention and Visitors Bureau. In 2009, an Indiana doo-wop group named Stormy Weather performed a song called “Lake County, Indiana” which was used by a local tourism agency for promotional purposes. One of the members of the group, Cheryl Janky, who wrote the song, sued them for using the song without her permission. The agency’s defense was that another member of the band, who had contributed to the writing of the song, had issued them a nonexclusive license for its use. The U.S. Seventh Circuit Court of Appeal found that this second bandmember was a “joint author” and therefore had the right to issue the license.
Janky is relevant to the Black situation because many of the Black family’s complaints lie with the profit Ark Music has been making from the work – ringtones, for example – which the Black family has apparently not received a share thereof. If Black and Ark were found to be co-authors of the song, they would co-own it. This is likely why Ark’s representatives have been stating that Black “didn’t even write a lyric.”