Here’s Why ‘Ye Is Fighting the Record Industry

On January 25, news broke that Kanye West was suing both his record label (Roc-a-fella/Def Jam/UMG/Bravado International Group) and his publishing company EMI

In the days that followed, several outlets got their hands on legal document albeit heavily redacted ones. In between all the stuff we’re not allowed to see, we can get a good sense of where Kanye is coming from: He appears to be making an argument that dates back to 1940s movie stars and includes Courtney Love and Nirvana, as well as another JAY Z signee, Rita Ora.

Kanye’s lawsuits come after he made an unsuccessful try to buy back his publishing rights last fall. The suits are an attempt to get out his recording and publishing deal obligations. He says that he wants to “be set free from the bonds” of his publishing contract with EMI, and feels the same about his record deal. Kanye signed the publishing contract in 2003 and, the suit claims, it should have ended in 2010, seven years after it started. Instead, he’s being held to its terms until he delivers a specific number of songs (the exact number is not yet publicly known)

Reading tidbits from TMZ and THR, it’s clear that Kanye is arguing this setup (being held to a contract until you deliver a certain amount of product, rather than for a set amount of time) is illegal, and he should have been able to walk away from his deals seven years after they started. But why? He agreed to the terms of the deals at the time. You can’t just leave a contract…right?

Oliva de Havilland. Photo Credit: Courtesy of Getty/Bettmann

It all goes back to Olivia de Havilland, a movie star in the 1930s and ’40s. In May of 1936, she signed a contract with Warner Bros. (this was back when actors were under contract to movie studios directly). Under a California law that had been around since the early 1900s, personal services contracts, like the kind an actor might make, were only allowed to last for seven years.

“It [Section 2855 of the Labor Code] basically said that one can’t employ anybody for more than seven continuous years, without the opportunity for them to seek employment elsewhere at the end of that period should they choose to do so,” entertainment attorney Jay Cooper says.

After a successful role as Melanie in Gone With the Wind, de Havilland wanted meatier parts than the “same old arm-candy roles” she had received in the past. But when those parts didn’t materialize, she got upset and started opting out, taking suspensions without pay so she wouldn’t have to play similar roles over and over again.

When the seven year term of her contract came to an end in 1943, de Havilland was more than ready to jump ship, but Warner Bros. tried an end-run around that. They argued that the time de Havilland was suspended shouldn’t count toward the seven year timespan, and she should stay under contract until she made up that time. In late 1944 it was decided in court, reasonably enough, that “seven years” means what it says: seven calendar years, no matter what. And the law that set out the seven year term, California Labor Code Section 2855 became unofficially known as the “De Havilland Law.”

The movie business eventually adjusted the meaning of “seven years” to, well, seven years, but the music business never did. In 1985, major record companies started lobbying for changes to the law, after getting taken to the cleaners by Olivia Newton-John over the issue in the ‘70s. In 1987, the labels got their wish. California Labor Code Section 2855 now applied to everyone except people involved in the “production of phonorecords,” aka recording artists. Artists generally sign deals for a number of albums, not for a length of time. So the new addition to the law allowed labels to sue for money for damages if an artist left a contract before delivering all the albums they promised, no matter how long a time it has been.

“Let’s say you have an artist under contract for five albums. And at the end of seven years, they’ve only delivered three,” Cooper explains. “The labels said, ‘You didn’t deliver two albums, so if you decide to leave, we can sue you for the damages for the undelivered albums.’ That is the effect of the law as it was revised to affect recording artists.”

The record companies argued that they needed this exemption. A staggering number of acts they sign—around 90%, they said at the time—end up losing money, and labels argued they need five or six or seven albums out of the few successful acts in order to make enough money to keep signing new artists.

And that’s where things stayed, more or less, until Courtney Love came along. In 2001, Love was upset that Geffen Records, which signed her band Hole in 1992, was shut down, and her contract became property of the parent company UMG. She wanted out, but she still owed the record company five albums. So she sued, starting a legal battle that she claimed ended up costing her millions. The core of her argument was that the seven year statute applies to everyone, recording artist or no. Therefore, she continued, the language about labels being able to collect money for damages even after that seven year time period doesn’t apply. It was risky, and a bit technical, but it started a movement. In the wake of Love’s suit (a suit that gained leverage because of her stake in the Nirvana catalog, and the contemporaneous fight over the band’s then-unreleased song “You Know You’re Right”), she started advocating for recording artists to band together and fight the system.

Cooper remembers Love talking about these issues around this time. “I always remember, her testimony was fabulous,” he says. Cooper recalls her explaining to lawmakers how her band was signed by famed record mogul David Geffen, but after several rounds of sales, the contract was owned by a French utilities and waste corporation named Vivendi. He remembers her asking something like, “‘Who do I talk to at the waste disposal company about my problems at the label?’”

Other notable artists joined the fight, at least for a while: a group called the Recording Artists Coalition was founded by Don Henley and Sheryl Crow in 2002, though they didn’t end up doing much with the De Havilland Law, beyond putting on fundraising concerts. They ultimately had much more success doing lobbying and legal work around copyrights.  Much like the RAC, Love’s fight against UMG eventually lost steam. She settled in 2002, receiving a $4 million advance against the new Nirvana recordings and control of Hole’s unreleased songs. Most importantly, she was let out of her record deal. 

Since that time, several big artists have followed Courtney’s lead, saying that the De Havilland Law applies to their deals. The theory has never been tested in court: 30 Seconds to Mars (with an assist from de Havilland herself) and Rita Ora have both cited the seven year idea, but both ended up settling. This makes sense to Cooper. “Nobody knows what would happen in a case like that,” he says. “There’s been no decisions on what those damages [from undelivered albums] would be, how you appraise those damages, what they would be based on. Everybody’s afraid, on both sides, to challenge it. So the practical decision has been to settle.”

Given what we know of Kanye’s lawsuit so far, he appears to be claiming that the De Havilland Law should apply to him. He says that he should have been able to walk out of his publishing deal without penalty back in 2010, and the fact that he’s stuck in it until he delivers a certain number of songs amounts to “servitude.” His complaint against his label uses, it is reported, “similar language.” 

At this point, we don’t know if Kanye really wants to take this all the way to the courts, or if he is hoping for a Love-style settlement. But if anyone has the combination of passion, ego, and money to spend on legal fees necessary to see this through, it would be ‘Ye. As for Cooper, he thinks the answer is legislative, not judicial: Get rid of the law’s exception for recording artists. 

“I’m not sure that the courts can overrule the law, unless they determine that it’s unconstitutional,” he points out. “But I think there’s a small chance any court is going to challenge the law. I think the law needs changing. We need to go back to the legislature and say, ‘Hey, this is unfair.’ You’ve taken one class of citizen in your state of California, and made a law different than the law that applies to every other citizen in the state. That doesn’t make any sense to me. I think the law should be changed. It’s a form of legal discrimination that I think is objectionable.”