Will Kanye Single-Handedly Change the Course of the Entertainment Industry?

Written by: Karl M. Braun, Esq.

Kanye West filed suit in Superior Court, Los Angeles County at the end of January, 2019 against EMI April Music, Inc. and EMI Blackwood Music, Inc. seeking declaratory relief, restitution and a constructive trust, alleging unjust enrichment through EMI’s alleged violation of California Labor Code Section 2855 (The De Havilland Law).

California Labor Code Section 2855 prevents a court from enforcing specific performance of an exclusive personal services contract beyond the term of seven calendar years from the commencement of service. The code section acquired its “nick-name” as the result of a lawsuit actress Olivia De Havilland filed in 1943 against Warner Bros. Prior to this lawsuit, Hollywood Studios took the position that, since actors and actresses took time off (and were not working every day), any law or rule limiting the length of their performance would start over every time they took a break from acting. Using this rationale, the studios could exercise control over actors and actresses virtually indefinitely.

However, the California Court of Appeals ruled in De Havilland’s favor in 1944. In a unanimous opinion the court adopted a common-sense approach and held that seven years from the commencement of service means seven calendar years. Since more than 7 calendar years had elapsed under Ms. De Havilland was free to work with other studios.

West uses the same code section to argue that the 2003 publishing agreement between West and EMI should, therefore, have ended in 2010. West urges the court to declare that EMI may not exploit the compositions West wrote and delivered to EMI once the initial 7 years expired. As a side note, there is a “carve-out” in Section 2855 which creates a notice exception for recording artists and others creating phonorecords that provides,

“Any employee who is a party to a contract to render personal service in the production of phonorecords in which sounds are first fixed… may not invoke the provisions of subdivision (a) without first giving written notice to the employer in accordance with Section 1020 of the Code of Civil Procedure, specifying that the employee from and after a future date certain specified in the notice will no longer render service under the contract by reason of subdivision (a).” [emphasis added]

At issue is a commonly included provision in publishing agreements. West’s provision provided, “You hereby represent and warrant that You will throughout the entire Term as extended by this Modification, remain actively involved in writing, recording and producing Compositions and Major Label Albums, as Your principle occupation. At no time during the Term will you seek to retire as a songwriter, recording artist or producer or take any extended hiatus during which you are not actively pursuing Your musical career in the same basic manner as You have pursued such career to date. (The preceding representation shall not be deemed to prevent You from taking a vacation of limited duration).”

Interestingly, West seems to be attempting an “end around” the Copyright Act’s 35 year termination provision which gives composers (and others who transfer copyright interests) termination of transfer rights but only after 35 years. Many publishing contracts expressly provide that they are not governed by California Law because of the effect of Code Section 2855. If West were to prevail in this lawsuit it could have a dramatic impact on the music industry generally and composers specifically.