Notice and supplemental registration: why the Copyright Office must update its policies surrounding author notice.

AuthorKaprelian, Erin E.

INTRODUCTION I. THE BACKGROUND OF MR. STRONG'S CLAIM II. EXISTING PRECEDENT FOR ADDRESSING MR. STRONG'S CLAIMS A. Fraudulent concealment as a basis for challenging authorship 1. Constructive Trust as a Basis for Rights in Copyright 2. Applying the Statute of Limitations III. CURRENT POLICY SURROUNDING AUTHORSHIP AND CHANGES THAT NEED TO BE MADE A. The existing policy of the Copyright Office does not adequately protect coauthors from having their status changed B. By implementing two changes to its policy, the Copyright Office will be able to protect coauthors and prevent a situation like Mr. Strong's from arising in the future CONCLUSION INTRODUCTION

When one wishes to conduct a search for a specific copyright today, he or she is able to do so entirely online (provided that the copyright in question is dated 1978 or later) thanks to the digitization of copyright records by the United States Copyright Office. (1) Prior to this digitization of records, the only way to search for a copyright was to search the copyright card catalog, housed in the Library of Congress. (2) Unless the interested party had reason to make the trip to Washington, D.C., to search the copyright card catalog, there was no way to determine the status of any copyright.

This aspect of the copyright system presents particular difficulties when a copyright has been altered. The Copyright Office allows for the submission of supplemental registrations to either correct or amplify an already accepted basic registration. (3) Corrections and amplifications can take many forms, one of which is to amend who is registered as an author on a copyright. (4) However, since the Copyright Office does not notify authors of such changes, without a reason to think that a supplementary registration had been submitted, an author would likely not realize that his or her rights had been affected. Such are the circumstances of Barrett Strong, a songwriter who worked for Motown Records.

This comment will first discuss Mr. Strong's case. Next, existing case law surrounding establishment of copyright rights after the original copyright has been filed will be discussed. Finally, the existing policies and procedures of the Copyright Office regarding the alteration of copyrights will be discussed and changes to the Copyright Office's correction and amplification policies will be proposed as a way to help reduce issues such as the one currently faced by Mr. Strong.


    Founded in 1959, Motown Records became famous for turning out such hits as "Dancing in the Street" and "Stop! In the Name of Love," (5) and for representing such artists as Stevie Wonder, Marvin Gaye, and the Supremes. (6) However, its first national hit came in 1959 with the song "Money (That's What I Want)" (hereinafter "Money"). (7) "Money" is currently at the center of a dispute surrounding who has the copyright in the song that is pitting a songwriter against Motown Records founder Berry Gordy. (8)

    Barrett Strong began his music career as a session musician. (9) In 1959, Barrett Strong recorded "Money" for Motown Records. (10) The song was first registered with the Copyright Office in November 1959, and credited both Barrett Strong and Berry Gordy for words and music, as well as Janie Bradford for words. (11) The copyright was issued early in 1960 under Strong's name. (12) In 1962, however, Jobete Music, Motown's song-publishing company, (13) filed an amended copyright with the instruction to remove Strong's name from the copyright. Under the policy of the United States Copyright Office, Strong had three years to contest the amendment. (14)

    In 1987, the copyright on "Money" was renewed, and Barrett Strong's name was re-added as an author, restoring his rights to the song. (15) The next year, however, Strong's name was once again removed--literally crossed out--from the copyright. (16)


    Barrett Strong's authorship and copyright dispute is not the first such action to arise. A number of cases have addressed whether an author can have his or her authorship rights restored. From these cases, three bases for Mr. Strong to challenge the copyright alteration and have his name reinstated as an author emerge. This section will discuss the existing case law and the corresponding bases for a challenge. First, fraudulent concealment of the change in authorship as a basis for a reinstatement of authorship will be discussed. Next, renewal of a jointly authored work by one author being viewed as a constructive trust will be examined. Finally, the application of the statute of limitations imposed by the Copyright Office to works that continue to garner income.

    1. Fraudulent Concealment as a Basis for Challenging Authorship

    In a traditional authorship dispute, a person has a limited amount of time in which to bring an action, beginning from the moment that the person knew or should have known that a basis for an action existed. (17) Typically, this is a straightforward requirement. However, one difficulty that may arise is whether an action can be brought if the person was unaware of an authorship issue because someone else (e.g. a coauthor) purposefully concealed the issue. In a case such as this, even though the original time period for filing a cause of action has passed, can the fraudulent concealment of the basis for such a cause of action excuse the delay and allow the action to be pursued?

    In Goodman v. Lee, the Fifth Circuit addressed this precise question. Shirley Goodman, one half of the singing duo "Shirley and Lee," claimed that she had co-written the song in question with her duet partner, Leonard Lee. (18) Lee obtained a copyright in the song but unbeknownst to Goodman, he obtained the copyright in his name alone. (19) As a result, Lee began receiving royalties from the song; after his death, his widow and daughter (the defendants in the case) began receiving the royalties. (20) The defendants then applied for, and received, a renewal of the copyright, still only in Lee's name and without the knowledge of Goodman. (21)

    Shortly after, Goodman filed suit seeking recognition as a co-author and an accounting of half the royalties and any other profits stemming from the song. (22) The defendants claimed that Goodman knew that she had been removed as an author "years before" she brought her action. (23) Goodman claimed that she did not know that her name had been removed as an author until the copyright was eligible for renewal. (24) A jury found that Goodman was in fact a co-author but did not know, nor should she have known that Lee had not included her as a co-author on the copyright application until 1984, well after the original copyright was filed. (25) Furthermore, the jury found that Lee had concealed from Goodman the fact that he had claimed sole credit for the song and that the defendants had concealed the fact that the song was earning money. (26) On their final appeal, the defendants challenged the judgment of the District Court that Goodman was a co-author and joint owner, and thus entitled to royalties. (27) The Fifth Circuit affirmed the judgment, saying that the Copyright Act supported the jury's determination of Goodman's ownership, (28) and that Goodman's action was not barred because it was filed within the statute of limitations as calculated from when she knew or should have known that she was not listed as an author on the copyright. (29)

    According to Goodman v. Lee, fraudulently concealing an author's status on a copyright registration from the author has the effect of tolling the three-year statute of limitations otherwise imposed by the Copyright Act. (30) As a result, even though the original copyright was filed in 1956, Ms. Goodman was still able to pursue a cause of action in 1985 because the exclusion of her name as a co-author was not a fact that she knew of or should have known of until the prior year. (31) The statute of limitations only began to toll when Ms. Goodman was on notice or should have been on notice that she had been excluded from the original copyright and the renewal. (32)

    Using Goodman, Mr. Strong can argue that, despite the original copyright being filed in the 1950s and subsequently renewed, Berry Gordy and Motown Records fraudulently concealed Mr. Strong's removal from the copyright for "Money." This argument is likely to be Mr. Strong's strongest chance for success for two reasons. First, the concept of tolling a statute of limitations is already an accepted practice in other areas of the law (e.g. torts), lending credibility to the practice of tolling a statute of limitations in copyright law. Second, Mr. Strong will have to show that he did not know that his name had been removed until well after the alteration had occurred and, since the original copyright was filed prior to 1978, he should be able to point to the fact that he would have had no reason to venture to the Copyright Office to check the authorship in the first place to help establish a later date of knowledge. If a court were to accept these two arguments, the three-year statute of limitations would not have begun to toll until such time as Mr. Strong was or should have been on notice that he had a potential cause of action. (33) As long as Mr. Strong filed suit within that three-year period, his cause of action would not be dismissed for falling outside the statutory period.

    1. Constructive Trust as a Basis for Rights in Copyright

      Demonstrating fraudulent concealment of critical facts, including who is listed as an author, on a copyright, is not the only basis on which an author can recover benefits associated with that status. A co-author who applies for and receives a copyright in his name has been found under the 1909 Copyright Act to hold a constructive trust for the other authors. (34)

      In Edward B. Marks Music Corp. v. Jerry Vogel Music Corp. (hereinafter...

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