Law360: ‘Mickey’ Singer Owns Recordings’ Copyright, 9th Circ. Affirms

News Law360: ‘Mickey’ Singer Owns Recordings’ Copyright, 9th Circ. Affirms Mark S. Lee · May 11, 2022

Law360 (May 11, 2022, 9:49 PM EDT) — Toni Basil, the singer behind the hit song “Mickey,” is the sole owner of the copyright for the recordings on her 1981 album, the Ninth Circuit affirmed Wednesday, finding that Basil seems to have “primarily wielded creative control” and that a producer involved in the project was not a co-author.

The three-judge panel agreed with a California federal court, which held that recording company Radialchoice Ltd.’s successor-in-interest had not shown that the 10 tracks on the “Word of Mouth” album constituted “joint work” under the Copyright Act. Basil, whose legal name is Antonia Basilotta, appears to be the creative force behind the recordings, the Ninth Circuit said.

And there is little evidence that Greg Mathieson, the producer hired to work on the album, exercised any control over the recordings, according to the decision.

“This vague description of Mathieson’s role as a producer, from someone who only occasionally witnessed Mathieson performing that role, is inadequate to prove that Mathieson was a creative mastermind behind the recordings rather than someone who was, for instance, mixing the tapes largely at Basilotta’s direction consistent with her creative vision,” the Ninth Circuit said.

It added, “Meanwhile, there is strong evidence that artistic control lay primarily with Basilotta and not with the recording company or — by extension — Mathieson.”

Radialchoice’s successor, Stillwater, said in its suit that it was successor-in-interest to Radialchoice to the copyrights in 10 recordings for which Basil was the featured vocalist. Among those recordings are “Mickey,” “Shoppin’ from A to Z” and “Time after Time,” according to the case.

According to Stillwater, Basil wanted to terminate the transfer of her copyright interest in the recordings. Stillwater then sued, seeking declaratory judgment as to the percentage of copyright interest in the recordings reverted to Basil.

“Stillwater contends the copyright interest of the producer of the [recordings], Greg Mathieson, which had been assigned to Radialchoice, did not revert to Basil but remained with Stillwater,” Stillwater said in a brief last year.

Stillwater said that only 50% of the copyright interest reverted to Basil and the other 50% stayed with Stillwater.

But after a bench trial, the district court sided with Basil. And the Ninth Circuit said Wednesday agreed, noting that Mathieson did not testify at trial or supply any written testimony in the spat.

The panel also said that Radialchoice had struck draft language from its first contract with Basil that would have given it control over whether a recording met a certain artistic standard. Ultimately, the company was only allowed to give approval based on whether the tracks were “technically satisfactory and suitable in all respects for commercial exploitation,” the panel said.

Meanwhile, Basil was the one selecting songs and musicians, devising the creative concepts and helping Mathieson mix the master tapes, the Ninth Circuit said.

“In addition, it is telling here that Stillwater’s own witness, the head of the recording company, testified that the notion of ‘joint authors’ never crossed his mind when he signed Basilotta as a recording artist,” the panel said.

The Ninth Circuit soundly rejected Stillwater’s argument that the relationship between a producer and performer of a sound recording is a “traditional form of collaboration in which the producer is generally considered a joint author so long as the producer completes his or her traditional duties.”

“But even assuming that there should be some presumption of joint authorship for traditional producers, Stillwater has not shown that Mathieson is entitled to any such presumption,” the panel said. “Stillwater neither produced expert testimony detailing the traditional duties of producers nor demonstrated that Mathieson performed such duties.”

Basil’s attorney, Mark Lee, told Law360 on Wednesday, “We’re pleased that the Ninth Circuit recognized the merits of our case and affirmed the judgment of the trial court.”

Counsel for Stillwater did not immediately respond to a request for comment late Wednesday.

U.S. Circuit Judges Paul J. Watford and Michelle T. Friedland and District Judge Eduardo C. Robreno sat on the panel for the Ninth Circuit.

Stillwater is represented by Anthony Motta.

Basil is represented by Mark S. Lee of Rimon PC.

The case is Stillwater Ltd. v. Antonia Basilotta, case number 21-55241, in the U.S. Court of Appeals for the Ninth Circuit.

–Editing by Peter Rozovsky.

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