On October 13, 2021, Cher filed a lawsuit against the Bono Collection Trust and Mary Bono. The Bono Collection Trust holds the property of Cher’s deceased, ex-husband, Sonny Bono. Mary Bono, Sonny’s widow, is the trustee of the Trust. Cher’s lawsuit alleges that the musical composition royalties owned by Sonny Bono are marital community property, she shared with him and that she continues to be entitled to 50% of those royalties. However, Sonny and Cher weren’t even married when Sonny wrote the duo’s hit songs and the continuing royalties from those compositions may not be “community property” at all.
Cher is suing the trust claiming she is due royalties from the songs that Sonny Bono wrote and that the trust has wrongfully terminated her right to those royalties. The way the press has covered the litigation so far, one might assume that Cher is being denied her rightful Cher, uh, share of royalties from singing on Sonny and Cher songs and performing with Sonny, but that is not the case. Cher has a right to the sound recordings of the songs she performed on. Mary Bono is not trying to take that away from Cher. That’s Cher’s voice on the records and Cher is entitled to continuing royalties from the use of her voice. She is paid every time her inimitable voice is heard singing I Got You Babe on the radio, in a movie or on television.
The copyright at issue is Sonny Bono’s interest in the musical works he created as a writer. Cher did not write any of their hit songs. Sonny wrote or co-wrote I Got You Babe, Needles and Pins, The Beat Goes On, Bang Bang, A Cowboy’s Work is Never Done, et al. In fact Cher has recalled that when Sonny woke her up to play I Got You Babe to her for the first time, she declared it a stupid song and said she was going back to bed. She had no part of the writing or composition process.
For copyright purposes, a song has two ownership parts. One is a right in the sound recording (this right is shared by producers and artists) and the other is the right in the musical work. This musical right belongs to the writer and publisher. The musical right attaches to the music and lyrics, not the voice or sound recording. That means when another artist does a “cover” of the songs that Sonny and Cher made famous, as a songwriter, Sonny is still entitled to his musical composition royalties. But the mere fact that you are the singer that made a song famous, does not mean that you profit every time someone else sings the song. You do not, unless you wrote it, too.
Cher sang Needles and Pins (which Sonny wrote) and she would get royalties from her performance. However, when Tom Petty sang Needles and Pins, his recording had nothing to do with Cher. Likewise, when Frank Sinatra sang Bang, Bang (My Baby Shot Me Down), Sonny would profit as writer of the song, but Cher normally would not, even though she has sung Bang, Bang too.
In her lawsuit, Cher claims that in or about August 10, 1978 she and Sonny entered into a Marriage Settlement Agreement (or MSA) in which they agreed to the equal division of their property. The exact language of that marriage settlement agreement is not quoted in the lawsuit. Optimally, it should either be quoted verbatim or the document itself should be attached to the complaint that was filed with the court, as an Exhibit, in order for a party to properly plead a cause of action for Breach of Contract. The lawsuit filed by Cher leaves the exact terms of the MSA up to the imagination, because it does not quote them.
The complaint says that the MSA granted Cher “an undivided fifty percent interest in various community properties they [Sonny and Cher] owned as of their February 1, 1974, separation.” The problem for Cher is that community property is property a couple acquires during their marriage. Sonny wrote his best selling songs before he and Cher were wed. Arguably, his legal rights in those songs, which arose when they were created, is his separate property, not community property.
Sonny and Cher met in 1962. At that time, Sonny was still married to his first wife, Donna Rankin. Cher was only 16 when she met Sonny, who was 27. Cher kindly says that nothing sexual occurred between them until she was of age. Unfortunately for Sonny, his relationship with the teen still sounds unsavory, even if they waited two years to have sex (which is hard to believe). At any rate, they eventually became lovers and wanted to marry, but could not because he wasn’t divorced. Frankly, he was broke and didn’t have the money to formally divorce.
Sonny and Cher began singing as a duet, first as Caesar and Cleo and then using their own names. Soon, they went from local radio hits (Baby Don’t Go and Just You) to a massive hit with I Got You Babe in 1965. They enjoyed international success and as part of their public relations push, they presented themselves as a married couple, claiming they tied the knot on October 27, 1964. Having told that lie, later they were too famous to actually marry, without someone finding out they had been “living in sin” the whole time. Therefore, the real marriage did not come until after that first wave of success had receded and they were no longer in the public eye. Their daughter Chastity (now Chaz) was born in 1969 and that’s when they got married. They developed a peppy touring show, appeared in Vegas and guest hosted on Mike Douglas’ day time talk show. There, their cute style and repartee caught the eye of someone at CBS and they filmed a pilot for a variety show that became a hit, catapulting them into their second round of fame and fortune.
Cher’s lawsuit describes their journey: “In or about 1964, Plaintiff and the late Salvatore (“Sonny”) Bono began performing together as the musical group, Sonny and Cher. They married in 1967 and during their marriage they achieved unparalleled success as a musical duo and television personalities.”
Cher’s lawsuit claims they married in 1967, but she herself has revealed the true date of the nuptials as 1969. All of the major hits that Sonny wrote for Sonny and Cher were written prior to 1969. They had middling success with All I Ever Need is You in 1972, but Sonny didn’t write that one, nor was he the author of Cher’s solo gems, Dark Lady, Gypsies, Tramps and Thieves and Half-Breed.
California does not recognize common law marriage. Therefore, the fact that Sonny and Cher were shacking up when he wrote I Got You Babe does not make it community property. And remember that famed divorce attorney Marvin Michelson did not raise the novel issue of “palimony” until 1977. Consequently, back in the sixties, live in lovers could not expect to share in 50% of their mate’s money. Sonny was married to someone else when he wrote some of his songs. Maybe his first wife (well, her surviving daughter Christy) should claim community property rights, too!
The fact is, from my legal perspective, what Cher was entitled to was 50% of any royalties that Sonny received from his musical compositions when they were together. Sure, I’ll even throw in the years, from 1962-1969 when they lived together, but had not yet tied the knot. Let’s be generous and concede she gets half of everything he earned from 1962 until the divorce was final in 1978. But what he earned is distinct and different from what he thought and what he created with those thoughts.
It’s called “intellectual” property because it derives from the intellect or mind. It’s a work of human intellect. Sonny made money from his musical ideas. Certainly his wife was entitled to half of that money, the money generated from his ideas, while they were together, but after they split, why should his ex continue to be paid half of what his ideas earn? Shouldn’t his last wife and his children (including Chaz) have a greater claim on those idea royalties than the woman who divorced him 43 years ago does? Cher gets half of all the tangible assets they possessed when they divorced, but not half of his intellect, until the end of time.
Ideas aren’t property that can be divided and distributed between a divorcing couple like money, cars, land and houses are split. If Cher’s interpretation of her MSA is correct, then Sonny transferred 50% of his rights in the musical works to her, but that doesn’t make it “community property,” especially since they weren’t even married when he created the music and his copyright interest in his creations first formed.
Cher says that Mary Bono has ceased to give her 50% of the royalties due to a termination provision of the Copyright Act of 1976, 17 U. S. C §§ 101, et seq which is the so-called “claw back” provision. This provision allows intellectual property holders, who have contracted away their rights, to reclaim those rights back from the licensee after 35 years.
Cher’s lawsuit claims that this “claw back” provision should not apply to her because she wasn’t just any licensee, she was an ex-spouse. She wasn’t a spouse when the copyright interests attached. She can’t have community property in something that Sonny acquired before they legally “communed.” Furthermore, even if she was once entitled to 50% due to her MSA, she has already received royalties for more than the 35 years allowed by the claw back statute. The claw back provision applies to works assigned after January 1, 1978. Sonny assigned his rights to Cher (assuming that the allegations in her complaint are true) after January 1978. Cher contends that the assignment occurred earlier, because she was married to him earlier. Yes, she was, but she wasn’t married to him when he first obtained the musical composition rights and he never assigned those to her until August 1978. She was not entitled to the rights as community property. She only obtained them through a contractual agreement. The claw back clause applies to contractual agreements. Therefore, the assignment of rights terminated after 35 years, pursuant to the claw back provision.
Cher is not entitled to half of Sonny’s ideas for perpetuity. In the complaint, Cher is described as a “world-renowned Grammy, Oscar, Emmy and Golden Globe award-winning singer, recording artist and actor,” as if all of her celebrated achievements make her claims more worthy. But what if she wasn’t Cher? What if she was some evil corporation, one of those mercenary record labels that took advantage of talented young artists by locking them into unfair contracts and buying their song rights for much less than they were worth. What if it was a resurrected Prince fighting to get full musical rights ownership of his music back from Warner Bros.? Wouldn’t we side with the beloved artist, not the licensee in that situation? Wouldn’t we say that 35 years of the profits from Prince’s ideas is enough? Just because Cher is the most beloved person in this situation, doesn’t make her the one with legal authority.
Don’t get me wrong. Between Mary Bono, Sonny Bono and Cher, Cher is the one I’m rooting for these days. Recall that Cher actually contacted the post office and asked if she could volunteer there, after postmaster General Louis De Joy tried to sabotage the 2020 election and slow down the mail, so that votes for Joe Biden could not be counted in time. It will take years for post office operations to recover from De Joy’s manipulations. Cher wanted to volunteer her time to help fix that.
Mary Bono, on the other hand, served in Congress for 15 years and did more to help rich corporations than she did for her constituents. Mary Bono is not particularly sympathetic.
Sonny once wrote about being ostracized from society for the way he looked, for his long hair and flamboyant clothes (listen to his solo hit Laugh at Me). He spoke out against Vietnam (in a song Cher sang called The Cruel War) and championed disenfranchised youth or those who turned to drugs because they felt alienated by their parents (in his song Pammie’s on a Bummer Now and his solo album Inner Views). He wrote these anti-establishment songs when he was in his 30s, speaking up for teenagers even when he wasn’t one. Thus, one would hardly have expected him to eventually become the Newt Gingrich loving conservative he was at the time of his death.
When Sonny skied into that tree and ended his life in 1999, he was alienated from his daughter Chastity (who then identified as a lesbian woman but is now Chaz, a 52 year old male), because Sonny spoke out against same sex marriage. In private, Sonny supported Chaz’s gender orientation, but publicly, he would not support gay marriage. He chose votes over his child’s rights. I don’t know if he would still be engaging in such cruel hypocrisy if he had lived. I hope not. But the point is, if this was a popularity contest, Sonny and Mary Bono would not win. However, it’s a copyright debate. In the legal arena, I think Mary Bono has the best argument. Cher is not the wronged artist here. She is the multi-millionaire trying to keep half of a writer’s profits for herself and away from his less wealthy widow and four kids.
Keep in mind that Mary Bono represents herself and Sonny’s four children (including Chaz), as trustee of Sonny’s trust. This means that in suing the trust (Sonny’s heirs), Cher is indirectly suing her own son. In her complaint, Cher indicates that the trust heirs (“or a majority of them”) voted to terminate her 50% share in the royalties. The complaint does not allege that Chaz voted against his mother, but it doesn’t say that he didn’t either.
I look forward to watching this litigation unfold. I would bet it ends in settlement. Depending on when Mary Bono was served with the October 13, 2021 lawsuit, she will have 21 days to respond. In the meantime, drums keep pounding a rhythm to the brain. La dee da dee dee, la dee da dee da.