Music Publishers Fight|Over ‘Foolish Things’


     MANHATTAN (CN) – British music publishers conspired to deprive an American company of its share of rights in the classic pop song, “These Foolish Things,” a lawsuit in New York County Supreme Court claims.
     The American firm at the center of the litigation, is the Bourne Company, a New York-based music publisher co-founded in 1919 by famed songwriter Irving Berlin.
     Its catalog features hits recorded by artists ranging from Barbara Streisand to Nat King Cole.
     In a complaint filed on June 4, plaintiff Marco Berrocal, successor in interest to Irving Berlin Inc., says U.K.-based Boosey & Co. Ltd. and its interrelated companies engaged in a series of transactions aimed at terminating the rights Bourne has held in the song since April 28, 1936.
     “These Foolish Things” was written by Eric Maschwitz and Jack Strachey that year and was subsequently recorded by Billie Holiday, Bing Crosby, Ella Fitzgerald, Frank Sinatra and others.
     Billie Holliday’s rendition, recorded with Teddy Wilson’s orchestra, ultimately reached No. 5 on Billboard’s pop music charts.
     Berrocal says under the terms of the 1936 agreement, Boosey & Co. granted Bourne publishing and licensing rights to “These Foolish Things” within the United States, Canada and Newfoundland for the song’s full U.S. copyright term in exchange for accounting and royalty collections.
     He claims Boosey & Co. violated the contract by intentionally relinquishing and transferring the 50 percent Maschwitz share of rights to the song to Boosey & Co.’s sister subsidiaries in order to terminate Bourne’s rights to this share before the end of the copyright term in 2031.
     “In 2014 … almost twenty years before the expiration of the term of the U.S. copyright in the Composition, Boosey & Co. claimed it would no longer provide Bourne the rights to one-half of the [c]omposition (the Maschwitz share) because such rights were purportedly lost by Boosey & Co.,” the complaint says.
     Berrocal says the British publisher took these steps after learning from Maschwitz’s family that his share “These Foolish Things” were about to legally revert to his heirs.
     The British music publishers eventually negotiated a contract with the Maschwitz family for the rights to their share of “These Foolish Things” for the remainder of the song’s U.S. copyright term.
     But instead of Boosey & Co., the rights were assigned to its sister company, Lafleur Music Limited, and later to another subsidiary, Boosey & Hawkes Inc.
     Citing this exchange of rights, Boosey & Co. then announced it would no longer honor the 1936 contract.
     “Defendants manufactured an opportunity to swap the rights to the Maschwitz share of the [c]omposition from Boosey & Co. to nominal nonparties of the 1936 Agreement, with the goal of divesting Bourne of its rights in the [c]omposition in the United States and Canada,” the complaint says.
     Additionally, the British music publishers are now threatening to completely terminate all of Bourne’s rights in “These Foolish Things,” both the Strachey share and the disputed Maschwitz share, because Bourne has exercised its right under the 1936 agreement to withhold royalties from Boosey & Co. for breaching the agreement, Berrocal says.
     Berrocal seeks at least $3 million in compensatory and punitive damages, plus an amount equal to the money Boosey & Co. and its subsidiaries have made from the song since they engaged in their alleged conspiracy.
     Berrocol and the Bourne Co. are represented by Paul LiCalsi of Robins Kaplan LLP in New York.
     Representatives got Boosey and Co. could not immediately be reached for comment.

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