A SONG NOT ASSIGNED AND ASSIGNED FOR 111 (OR 128) YEARS TO PEERMUSIC?
The tricks for eternal copyrights
Note: This analysis could be made for many songs with almost identical results. We chose AUSENCIA. A glossary of terms is included below. Itis assumed that Judge Fuste aid that the song belonged to Peer, which may not be the case, in Fuste's very confusing ownership statement on page 42-11.
How can a song not assigned be assigned? Read on.
Guillermo Venegas Lloveras (GVL) composed his first song at age 12. The song was AUSENCIA (Absence). A very beautiful song. You can hear an mp3 clip here, sung by GVL.
When GVL passed away in 1993, he was 78 years old. This made the song 66 years old at the time. AUSENCIA was recorded in about 1935 by Trio Armonico. That recording is still being sold by a European record company and can be purchase in local record stores.
Peermusic, also known as Peer International, has claimed that GVL assigned AUSENCIA (and many other songs) to Peermusic through a 1952 contract and a 1964 agreement letter, the same way that GVL assigned the song "Borracho sentimental", which he did not compose. Both of these documents, the 1952 contract and the 1964 agreement letter have serious flaws that are discussed elsewhere.
Some facts here. To date, in the 52 years since Peermusic allegedly acquired the rights to the song:
a. GVL never gave Peermusic a score or a recording of AUSENCIA.
b. Peermusic has no score of AUSENCIA.
c. Peermusic has never copyrighted AUSENCIA.
d. Peermusic has never published AUSENCIA.
e. Peermusic never registered AUSENCIA with a performance rights society.
f. Peermusic never registered AUSENCIA with a mechanical licensing organization.
g. Peermusic never made a recordation of the 1952 and 1964 transactions.
h. No one has ever recorded AUSENCIA with a license from Peermusic.
i. Peermusic is not collecting royalties from the European producer of the recording of the song AUSENCIA or is not accounting the income.
j. Peermusic has never paid any royalties for AUSENCIA to GVL or his heirs, the supposedly beneficial owners .
j. AUSENCIA was listed among the 14 songs that Peermusic was to obtain "without the author suspecting".
In 2004 Judge Jose A. Fuste decided that the song AUSENCIA and others similarly acquired belonged to Peermusic. Since, for unpublished works the copyright duration is currently the life of the author plus 70 years, hypothetically, Peermusic could have the songs until year 2063 (1993 + 70). That would mean that Peermusic had absolute control of the songs for a period of 111 years, from 1952 to 2063. Also Permusic could benefit, if it wanted, benefit form a 1935 recording, extending the beneficial period from 1935 to 2063 or a total of 128 years.
111 (or 128) years for Peermusic?
Wait a second! In 1952, by law, the longest period of time that a songwriter could assign a song to a music publisher was for 28 years and if the songwriter (or his/her heirs) wished), at the end of the 28 years he could assign the renewal rights for another 28 years, for a total of 56 years. We therefore must have some questions and answers to understand how a publisher could increase the legal assignment period fourfold.
Did GVL assign the song to Peermusic in 1952?
No. The document that GVL signed in 1952 did not mention the song. As a matter of fact it did not name any song. It was actually an illegal blanket license. It was illegal because it transferred the rights to a property (song) that is not named.
Did GVL assign the song in 1964?
No. The 1964 agreement letter that Peermusic alleges assigned the song to them was never signed as accepted by Peermusic. Peermusic thus did not acquired the responsibility in registering the song at the Copyright Office and exploiting it for the benefit of GVL. Therefore the assignment was never completed. Also the 1964 agreement letter was made by Peermusic while making it look like it was written by GVL. At the same time the agreement letter was written another letter was written by Peermusic. In it it was asked of a Peer executive to get a number of GVL "without the author suspecting" that the songs were going to be registered in the Copyright Office.
How can a 28 year assignment turn into 111 (or 128) years?
By using what we call the Peer copyright duration trick and the sentence of a judge.
Since the copyright registration was never made by Peermusic the rules of the game were altered and a 28 year assignment turned into an 111 year assignment. In the trial Peermusic stated that some songs were not copyright registered so as to extend the life of the copyright. Of course this is nonsense (and if it was done it was without GVL, the author knowing it), since a music publisher must register every song they acquire so that the song can benefit from the benefits of registration, among which are:
a. Let the world know who controls the song.
b. Let the world know where a license can be obtained.
c. File a complaint if the song is infringed.
d. Limited the assignment period to 28 years.
But the use of the Peer duration trick doesn't end here. According to the copyright law, after a number of years, assignments to publishers can be terminated by the decision of the author or the author heirs. Additionally when a first term copyright period of 28 years ends, the song control returns to the author. But wait a second! When these periods (renewal and termination) arrived Peermusic does not notify anyone, be it the author or the heirs. Of course Peermusic could not notify anyone when the termination date started because that date is determined by the date that GVL gave the songs to Peermusic, an event that never occurred! But even if Peermusic had legally acquired the songs, Peermusic has the nasty habit of never informing songwriter and other beneficial owners of when renewal and termination rights accrued them, so no one realizes that the control by the publisher ended or could be terminated by the author or the heirs. That is real trickery.
And what did the judge say about this trickery and the Peer copyright duration trick ? Nothing.
In January of 2005, the heirs of GVL terminated the assignment that was never made to Peermusic. Only through this action will the song be rescued from the dead music vault that Peermusic had for the songs of GVL and other blacklisted composers.
Peermusic method of promotion:
An interesting story: In June, 2004 a musician that wanted to record several GVL songs wrote to Peermusic asking for a score of AUSENCIA (and 15 other songs) and information about how to get a license to record. Peermusic never responded to the musician! When this writer inquired to Peermusic on December of 2004 as to why they did not reply to the musician, the reply was, incredibly, that music publishers do not have to have music scores of the songs they allegedly promote. No comment was made or reason given by Peermusic as to why they did not reply to the musician. Peermusic, who alleges to be a "highly respected" and largest music publisher of its kind, alleges also in their propaganda that it tries to turn every song that is assigned to them into a hit. Of course, if Peermusic has no score it cannot do anything with a song. A 10 year old kid could reason why. Wow!
Peermusic said in the trial that the reason that GVL did not produce any or hardly any incomes was that the music was not liked. AUSENCIA (mp3 clip here) is one of those songs.
All without the author suspecting.
Assignment: The transfer of a right to the assignee. For example, song authors may transfer the right to exploit works to a music publisher allowing the publisher to retain party of the song's income in exchange for a publisher's promise (an obligation) to exploit the song.
Beneficial owner: A person that benefits from the exploitation of a song by a music publisher after the publisher acquires the work for the purpose of benefiting the original (beneficial) owner. Strangely, this term is never used in the music publishing business (so that the beneficial owners dot not realize they have rights?).
Copyright: Per 1909 a monopoly exploitation right that existed for copyright registered songs. The right lasted for 28 years. After 1978 the law extended the right to non registered songs.
Renewal rights: A second period of copyright protection. Regardless of a prior assignment the renewal right period belonged to the author or successors in right.
Termination rights: A right to terminate a song assignment to a music publisher by the author or the author heirs. Upon termination the copyright reverted to the author or successors in right.
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