CINCINNATI (CN) — Copyright termination notices filed by the daughter of “Que Sera, Sera” composer Jay Livingston are invalid and do not prevent his granddaughter from collecting royalty payments, the granddaughter argued Thursday before an appeals court panel.
Travilyn Livingston is Jay Livingston’s daughter, the owner of Jay Livingston Music Inc. and the estranged biological mother of Tammy Livingston, Jay’s granddaughter. Both are beneficiaries of various trusts established by the composer during his lifetime.
Jay Livingston Music Inc. owns copyrights for Livingston’s works, including “Que Sera, Sera,” “Mona Lisa” and “Silver Bells.” Until recently, Tammy Livingston and other beneficiaries received a portion of royalties from these songs.
In 2015, Travilyn Livingston filed notices of termination for “Que Sera, Sera” with the U.S. Copyright Office, which prompted Tammy Livingston to file the underlying lawsuit in federal court in 2022.
Attorney Jonathan Wolf from Nashville argued on Tammy Livingston’s behalf before the Sixth Circuit and disputed the validity of the termination notices.
He told the panel of judges Jay Livingston Music Inc. never signed the copyright reassignment notices filed by Travilyn Livingston, which could allow the entity to avoid paying royalties to his client.
Jay Livingston’s granddaughter had petitioned the lower court to declare the termination notices invalid, but U.S. District Judge Waverly Crenshaw Jr., a Barack Obama appointee, granted Travilyn Livingston’s motion to dismiss instead.
Crenshaw refused to invalidate a series of transfers made by Jay Livingston shortly before his death that moved all ownership interests in his music to Jay Livingston Music Inc. and also rejected all of Tammy Livingston’s arguments regarding defects in the termination notices.
On Thursday, Wolf was questioned repeatedly by the judges regarding the concrete harms suffered by his client that would grant her standing.
“It feels like you are speculating she is not getting paid,” U.S. Circuit Judge Chad Readler, a Donald Trump appointee, told the attorney. “I’m just having a little trouble understanding the harm.”
Wolf clarified that underpayment of royalties is a separate issue but cited specific instances of the use of “Que Sera, Sera” in commercials and television for which Tammy Livingston was not paid.
U.S. Circuit Judge Eric Clay, a Bill Clinton appointee, asked about accounting statements and how Wolf can be sure his client is being cut out of her fair share.
The attorney said royalty statements in the music business are known to be inaccurate, and that Tammy Livingston only started receiving them within the last year.
“The defendants conceded she has a right to royalties, so it seems like a complaint about the payment amount,” Clay said.
“This case is about the termination of the copyright assignments,” Wolf responded.
Attorney Tim Warnock of the Loeb and Loeb firm in Nashville argued on behalf of Jay Livingston Music Inc. and explained to the panel that Travilyn Livingston properly reassigned the copyright interests to his client after she filed the termination notices.
Warnock extolled Crenshaw’s opinion and agreed with Readler that his opposing counsel could not establish standing.
“What we have here is a very thorough opinion by the lower court, and a case where Tammy cannot outrun argument by amending her complaint. She’s had three tries to amend her complaint, and she hasn’t been successful in any of them,” he said.
He emphasized that as the sole child of Jay Livingston, Travilyn Livingston was the only individual who possessed a termination right in the copyrights, which she properly exercised before the reassignment to Jay Livingston Music Inc.
In her brief to the Sixth Circuit, Tammy Livingston accused her mother of making a “brazen effort” to cut her out of her grandfather’s estate, while also hiding critical financial information about royalties.
“Plaintiff simply seeks to preserve the songwriter royalties left to her (and the other trust beneficiaries for which she is partially responsible) by her grandfather as part of his detailed, albeit complex estate plan, from a sneak attack,” she said. (Emphasis in original.)
Senior U.S. Circuit Judge Eugene Siler Jr., a George H.W. Bush appointee, rounded out the panel.
The court did not set a timetable for its decision.