CBS Sued Over Hawaii Five 0 Theme Song

[mandyblue]

From The Hollywood Reporter



CBS Sued Over 'Hawaii Five-O' Theme by Composer's Family

8:17 AM PDT 3/20/2015 by Eriq Gardner


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A lawsuit by Morton Stevens' children alleges that CBS wrongfully filed a renewal registration after he died and that the new show infringes their rights.



Who knows whether U.S. Supreme Court Justice Ruth Bader Ginsburg watches Hawaii Five-0, but thanks to something she wrote last year, the theme song may have to change.

On Thursday, CBS was hit with a copyright infringement lawsuit from the children of the late Morton Stevens, a prolific, Emmy-award winning film and television score composer whose work includes the trumpet-and-drums opening to the CBS crime procedural. Stevens died in 1991, which, according to a complaint filed in California federal court, was about six years before the renewal copyright term for the Hawaii Five-0 theme commenced. That's important because under copyright law, for works created before 1978, when an author dies before the original term of a copyright grant expires, rights revert to the heirs.

Notwithstanding this quirk of copyright law, CBS is said to have filed a renewal registration for the theme in 1997. The lawsuit says that CBS didn't have the right to do this. The original incarnation of Hawaii Five-0 ran on CBS from 1968 to 1980, and the registration might not have caused any issues if it were not for CBS' decision to reboot the series in 2010 and if not for what the U.S. Supreme Court ruled last year in a case concerning rights to Martin Scorsese's classic film Raging Bull.

Read more MGM Swings for Knockout in 'Raging Bull' Lawsuit

In that Supreme Court decision, Ginsburg took a look at a lawsuit filed by Paula Petrella, whose father wrote works that became the basis of Raging Bull but died before the end of the original copyright term. The question in the case was whether Petrella's long delay in filing the lawsuit should preclude her claims against MGM and 20th Century Fox. Ginsburg decided not to impose a "sue soon, or forever hold your peace" rule for copyright lawsuits.

This means that the Stevens family may be able to get around the fact that they were arguably put on notice in 1997. Representing the Stevens children is attorney Henry Gradstein, who previously represented the ex-agent of late Hawaii Five-0 creator Leonard Freeman in a $100 million lawsuit over the reboot. Gradstein failed in that case, but his familiarity with the show's rights probably led him to figuring out another opening. His firm and Robert E. Allen also represented the son of T. Rex frontman Marc Bolan in a successful challenge on song rights in a copyright reversion case.

The new lawsuit alleges CBS has prepared a "new derivative recording of the Hawaii Five-0 Theme and embodied it in the New Series and the Soundtrack Album."

The Stevens family is seeking actual damages and profits or alternatively, statutory damages. The lawsuit also demands an injunction. In last year's Supreme Court opinion, Justice Ginsburg wrote that the defense of laches couldn't bar recovery of damages brought within the applicable three-year statute of limitations while letting judges figure out whether a delay in filing should impact requested injunctive relief.

Responding to the lawsuit, a CBS spokesperson commented, "We were surprised and disappointed by the lawsuit filed by the heirs of Morton Stevens more than five years after the new Hawaii Five-0 series premiered, without any prior discussion between the parties. Although we have great respect and appreciation for Mr. Stevens' work on the original Hawaii Five-0 theme song, his heirs' claims are without merit, and we will vigorously defend this case."

[katlyn520]

The renewal registration for EP0000257805 does say that the Copyright Claimant is CBS. The records for 1969, when the original copyright claim was filed, aren't available online. It could be that Morton Stevens sold the rights to CBS way back when and that's why CBS feels they have a good case. Interesting, though, that this whole thing was probably started by the lawyer who lost the original case and seems to have decided to go looking for another reason to sue CBS over the reboot.

[davilarose]

Seems odd that they would wait until the re-boot has been on for 5 years to sue over the music. Maybe the heirs are just after money......sad. Time will tell.

[katlyn520]

Mar 21, 2015 16:28:57 GMT -5 davilarose said:

Seems odd that they would wait until the re-boot has been on for 5 years to sue over the music. Maybe the heirs are just after money......sad. Time will tell.

I got the impression from the article that it was the attorney who went looking for a client and not the Stevens family who went looking for an attorney. To me, this:

"Representing the Stevens children is attorney Henry Gradstein, who previously represented the ex-agent of late Hawaii Five-0 creator Leonard Freeman in a $100 million lawsuit over the reboot. Gradstein failed in that case, but his familiarity with the show's rights probably led him to figuring out another opening."

...says he's not much more than an ambulance chaser, looking for a client so he can sue someone. And a reboot of an old classic show probably has a lot of different angles. If he loses this one, he'll probably try to find another angle. Maybe he'll next try to sue because they turned Kono into a female or because Steve's inability to get the Marquis to run for any length of time is an insult to a classic car. I really would like to see the original copyright filing to see whose name is on it but for something that far back you actually have to visit the archives (i.e., really visit them in the copyright office) because they're not searchable online.

[Kee]

Mar 21, 2015 16:28:57 GMT -5 davilarose said:

Seems odd that they would wait until the re-boot has been on for 5 years to sue over the music. Maybe the heirs are just after money......sad. Time will tell.

What else would it be? They want CBS to quietly write them a check with a nice bunch of zeros on it and then they'll make nice and go away and be friends again.

[katlyn520]

I was just doing a little reading about this and I don't think the Raging Bull analogy necessarily applies. It says that in that case, this woman's father wrote works that became the basis for Raging Bull but he died before the end of his original copyright. And when she sued several years later, it was determined that time shouldn't be a factor. But that's like saying I wrote a book and someone took that book and made it into a movie after I died. It's still my book and my heirs should have the right to it.

But there's also something in copyright law that's called a "work made for hire" and that includes a work specially ordered or commissioned for use as part of a motion picture or other audiovisual work (among other things). I'm presuming that music was commissioned for H5-0 so it sounds like it's a work made for hire ... and the owner of the copyright in that case is the EMPLOYER (i.e., CBS) and not the writer. Maybe that's why CBS is saying the claim is without merit.

I still think it comes down to an attorney chasing after anything he thinks he might be able to get without, maybe, doing the research he needs to do. I don't think the family instigated this; I think he went to them with the idea.