Kanye West Takes on the Record Industry
It is no secret that Kanye West has often taken to his Twitter account to express controversial opinions. However, in January of this year, West took to the courtroom. West filed a lawsuit against the music publisher EMI in Los Angeles Superior Court, invoking section 2855 of the California Labor Code, which provides that personal service contracts may not exceed seven years in duration.[1] Section 2855 was also the basis on which Olivia de Havilland of Gone with the Wind attained freedom from her contract with Warner Brothers in the 1940s. [2] In fact, this law is unofficially referred to as the “De Havilland Law” and its bounds are clear: it is unlawful to bind someone to a personal services contract after seven calendar years of the initial contact signing.[3] West signed his contract with EMI in 2003 while recording his debut album, College Dropout.[4] According to West, under the De Havilland Law, his contract should have ended in 2010.
However, in 1985, a carve out to the De Havilland Law allowed record labels to create contracts with recording artists that were based on the number of albums produced and not the duration of the contract.[5] Likewise, recording artists may be bound to a contract for more than seven years without protection under this law.[6] In 2001, Courtney Love sparked a movement to fight for recording artist protection under the De Havilland Law, but ultimately she settled her case in 2002.[7] While there have been other efforts to change the state of the law in favor of recording artists, these efforts were rarely fruitful because of The Recording Industry Association of America, the powerful lobby group originally responsible for the carve out.[8] When other recording artists have cited the seven year rule in their own lawsuits, the disputes were settled outside of court.[9]
West is the latest artist to invoke section 2855 in order to break his deal with EMI. West is not only seeking freedom from his employment contract, so that he could obtain additional deals with other companies, but he also wants to be named the owner of all works he produced for EMI after 2010, when the contract should have expired pursuant to section 2855.[10] However, by invoking intellectual property law, West opened the door for EMI’s first move in this dispute: to file a notice of removal to federal court, which has exclusive jurisdiction over copyright law.[11] West’s contract contains a disclaimer stating “for purposes of California Law [these agreements do not] constitute contracts for any of [West’s] personal services.”[12] In this way, the agreement is set up like an intellectual property transfer, requiring West to give EMI ownership over his songs.[13] EMI’s strategy will be to argue the copyright issue, with the hopes of preempting the employment dispute.[14]
West’s best bet will be to argue against the enforceability of the EMI contract based on the theory that it is in fact a personal service agreement and it violates public policy. In particular, the contract forbids West from “seek[ing] to retire as a songwriter, recording artist or producer or take any extended hiatus during which [he is] not actively pursuing [his] musical career in the same basic manner as [he has] pursued such career to date.”[15] This provision points directly to EMI’s intention to create a personal service agreement with West for an indefinite duration.[16]
While it is unclear if this dispute will go to trial, it could be a unique opportunity for the recording artist exception to the De Havilland Law to be analyzed in court.
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