Music Copyright War Looming

quarterbuck writes with this excerpt from the NY Times: "When copyright law was revised in the mid-1970s, musicians, like creators of other works of art, were granted 'termination rights,' which allow them to regain control of their work after 35 years, so long as they apply at least two years in advance. Recordings from 1978 are the first to fall under the purview of the law, but in a matter of months, hits from 1979, like 'The Long Run' by the Eagles and 'Bad Girls' by Donna Summer, will be in the same situation. ... 'We believe the termination right doesn’t apply to most sound recordings,' said Steven Marks, general counsel for the Recording Industry Association of America, a lobbying group in Washington that represents the interests of record labels. As the record companies see it, the master recordings belong to them in perpetuity, rather than to the artists who wrote and recorded the songs, because, the labels argue, the records are 'works for hire,' compilations created not by independent performers but by musicians who are, in essence, their employees."

Comments

It depends on contracts

[zget]

Unless the artists self-financed it and didn't make contracts with record labels, it basically is work for hire.

Lets take game series as examples - even if your studio created the game and the franchise, the IP rights to the name, characters etc belong to the publisher as they financed it and that was the deal made with the studio. Unless they make a deal with the publisher, they also cannot just leave and continue using that same name under another publisher. On the other hand, the publisher has the right to use the name even if they hire a new studio the make it. This is the case with Call of Duty series too. It's basically work for hire, and it's a decision creators make when thinking if they could finance it on their own or if they need a publisher to finance the initial creating part. Since publisher takes a risk, they also get to own the work done.

It's the same thing when you work for a software company as coder. You don't own the product or the code you made, as you were hired to do it for the company. If you want to keep it all to yourself (and also get larger rewards), you need to finance and handle all parts of it yourself.

Re:It depends on contracts

[WrongSizeGlass]

I think it all depends on how the contracts with the bands/musicians were worded. If they don't read as "works for hire" contracts, or the record companies only have distribution deals, then the RIAA bastards may be out of luck.

Re:It depends on contracts

[sesshomaru]

"Not only have recording artists traditionally paid for the making of their records themselves, with advances from the record companies that are then charged against royalties, they are also exempted from both the obligations and benefits an employee typically expects. "

In other words, the recording industry, when it is harmful to them, says, "They are independent artists" including loaning them money to make a recording that they then have to repay. However, when it's in their interest for the artists to be employees, they say, "Hey, it's work for hire, we own it."

This is why the people who make up the recording industry are thought to be the loveliest people on Earth.

Re:It depends on contracts

[LordKronos]

Except the music studios typically DON'T finance it. From pretty much everything I've every read, they usually give the artist an advance to cover costs and then recoup that money from the sales. That's one of the many reason a lot of artists hardly see any money come their way from record sales.

Re:It depends on contracts

[Ruke]

Not true. The typical record label deal is essentially a loan: artists are given a lump sum of money up front, and then are under contract to produce and sell music. The record labels then take a cut of the sales, paying off the orginal forwarded money over time. From TFA:

Independent copyright experts, however, find that argument unconvincing. Not only have recording artists traditionally paid for the making of their records themselves, with advances from the record companies that are then charged against royalties, they are also exempted from both the obligations and benefits an employee typically expects.

“This is a situation where you have to use your own common sense,” said June M. Besek, executive director of the Kernochan Center for Law, Media and the Arts at the Columbia University School of Law. “Where do they work? Do you pay Social Security for them? Do you withdraw taxes from a paycheck? Under those kinds of definitions it seems pretty clear that your standard kind of recording artist from the ’70s or ’80s is not an employee but an independent contractor.”

Re:It depends on contracts

[Todd Knarr]

Two things though. First, as a software developer your contract with your employer states explicitly that the copyright on code you produce rests with your employer, not you. If it didn't, the default rules are that you own the code, not the company. Second. software developers like that are also W2 employees, not independent contractors. And that makes a difference. There's been several run-ins between companies and the IRS about employee status, and the labels may be walking into a minefield. If the artists really are employees, not independent contractors, then the labels are responsible for payroll tax withholding, unemployment insurance payments, employer's portion of SSI and Medicare taxes, etc. etc..

Re:It depends on contracts

[Anonymous Coward]

*Achievement unlocked: Didn't read the article! +25 Slashpoints!*

FTA:

Independent copyright experts, however, find that argument unconvincing. Not only have recording artists traditionally paid for the making of their records themselves, with advances from the record companies that are then charged against royalties, they are also exempted from both the obligations and benefits an employee typically expects.

“This is a situation where you have to use your own common sense,” said June M. Besek, executive director of the Kernochan Center for Law, Media and the Arts at the Columbia University School of Law. “Where do they work? Do you pay Social Security for them? Do you withdraw taxes from a paycheck? Under those kinds of definitions it seems pretty clear that your standard kind of recording artist from the ’70s or ’80s is not an employee but an independent contractor.”

Re:It depends on contracts

[Zeinfeld]

The typical recording contract of that era was expressly designed to avoid being categorized as 'work for hire' as it would mean a shorter copyright term. The recording contracts were also designed to bilk the artists out of their royalties by requiring them to bear a very long list of costs. Work for hire has a very specific meaning in copyright law. The labels can't redefine the meaning retrospectively. Or at least they can't unless they can bribe Congress to do it for them.

Re:It depends on contracts

[Rhywden]

Fun part is that in Germany, such an argument would bring immediate retribution by the state - since, if they're actually employees, the companies have to copay for such things like pensions or health insurance.
Thus they'd leverage huge fines against the companies making that argument since we all know that musicians rarely see a significant dime out of their contracts - which is the reason why they're doing tours where they also sell t-shirts to make money.

Re:It depends on contracts

[PuckSR]

Not exactly. That analogy is too simple.

A coder is hired to write code for a project. A musician is 'hired' to record a work that they created. The work exists independent of the record company. The same cannot be said of the coder. The coder does not write code and then get hired to put his code in the game. If the code existed before the formal business relationship, then the code is licensed from the coder.

This is actually a point that frequently comes up. Someone works on a project while working for a company. The company claims they have rights to the project because they were employing the individual at the time. The individual will typically argue that the work was not part of their "work for hire" and the truth of that claim is debated by the courts.

The RIAA argument makes sense in certain respects. Take "The Monkeys" for example and their hit song "Daydream Believer". It was written by John Stewart under contract to write songs. It was performed by "The Monkeys" as part of an employment contract to make a TV show. No debate, very clear cut. However, it gets more confusing when we have a song that was written and performed before the contract even existed. In that case, it is pretty clear that the creation of that work was not "work for hire" and therefore the record company is really licensing the music(though they may have had the artist agree to something else). Lots of artistic works fall into the cracks somewhere in the middle. This will be very interesting.

Re:It depends on contracts

[The Grim Reefer2]

The labels can't redefine the meaning retrospectively. Or at least they can't unless they can bribe Congress to do it for them.

Oh, OK, so they can do it then.

Re:It depends on contracts

[Rob the Bold]

Unless the artists self-financed it and didn't make contracts with record labels, it basically is work for hire.

First of all, wouldn't the law trump a contract?

And secondly, isn't it strange to call it "work for hire" when the recording costs like studio time, engineering, mastering, distribution and promotion are taken off the top before the artists ever see a dime? Is it "work for hire" if you have to sign your own paycheck?

Re:It depends on contracts

[AlamedaStone]

Fun part is that in Germany, such an argument would bring immediate retribution by the state - since, if they're actually employees, the companies have to copay for such things like pensions or health insurance.

Thus they'd leverage huge fines against the companies making that argument since we all know that musicians rarely see a significant dime out of their contracts - which is the reason why they're doing tours where they also sell t-shirts to make money.

You Germans are so backwards. Here in America, it is every citizen's right not to have a pension or healthcare.

Re:It depends on contracts

[ColdWetDog]

Harry Reid's halter top

You sir (or madam) have thoroughly grossed me out.

Now I have to go Clorox my mind.

Re:It depends on contracts

[rekoil]

"Work For Hire" provisions are unenforceable in recording contracts because US copyright law is rather specific about what can be considered a work for hire - and sound recordings are not on the list. It was briefly added in 1999 but was removed a year later.

Re:It depends on contracts

[HermMunster]

It was added by some Congressional staffer who inserted the verbiage just before the vote. It was signed into law. After a major outcry by the artists it was corrected. That ex-Congressional staffer now works for the RIAA making nearly half a million annual salary.

Don't worry, the RIAA owns Congress too

[elrous0]

Yeah, they were way more expensive than those master recordings. But if you have the means, I highly recommend it.

Expect "clarifications" to this law any day now--just like Congress constantly revises copyright law to make sure that nothing past 1923 is EVER out of copyright (after generous campaign contributions from the good people at Disney, of course).

And if you're thinking there is anything that you as a citizen can do, don't you worry your pretty little head about it. With both major parties supporting pro-industry IP legislation, there is really nothing you can do about it. But if you want a nice form letter to frame, you can go ahead and waste a stamp and write to your Congressman.

Re:Don't worry, the RIAA owns Congress too

[Anonymous Coward]

You're cynicism is laudable, but you fail to recognize that Congress has many masters, and sometimes these masters come into conflict. In fact, the RIAA got Congress in 1999 to say that recordings were works for hire, but the musician lobby subsequently had that amendment repealed. This is why the definition of "work for hire" under S. 101 of the Copyright Act has the absurd language telling courts to disregard the previous amendment. Otherwise, the fact that Congress repealed it would tell courts that the recordings definitely weren't works for hire. Part of the compromise struck was that Congress would attempt to put the status quo back into place so that the RIAA and musicians could try their luck in the courts, without ostracizing their congress critters further.

Re:Don't worry, the RIAA owns Congress too

[TechnicalPenguin]

Expect "clarifications" to this law any day now--

They tried that about 11 years ago, as covered here, among other places.

The short version is that in November 1999, "the recording industry lobby quietly slipped a passage deep into the Satellite Home Viewer Improvement Act of 1999, that classified sound recordings as work for hire -- effectively preventing copyright from reverting to the artist after 35 years." The change was noticed, strong arguments were made against it, and the RIAA ended up reversing its position in August 2000. The Work Made for Hire and Copyright Corrections Act of 2000 reverted the change in September 2000.

Oddly enough, the supporters of the change back then insisted that this new language wasn't actually a "change" in the law, but merely a "clarification."

Re:Don't worry, the RIAA owns Congress too

[rust627]

This needs action.
When you think of the multiple ways copyright is used, this can be seen as a wedge action.
If they can get away with this then they will push for the same for books, simultaneously arguing that authors are the intellectual property holders and merely paid labour who merely wrote the book.
Because if they can push this through, it also gives them a further basis for not paying royalties to the songwriters,authors, comic producers, and in fact any and all content producers within their realm.
Time Warner et al will love this if they can get it through.

OK fine, they were employees

[Anonymous Coward]

OK, fine. They were employees. You did file all the IRS paperwork required for an employee, didn't you? No? Hello, RIAA this is the IRS. We'd like to review some matters with you...

Re:OK fine, they were employees

[TheSpoom]

I guarantee that legally speaking, they'll claim they were independent contractors, which allows a "work for hire" without all the messiness of an employer-employee relationship. It has the added bonus of making the musician responsible for all taxes.

Re:OK fine, they were employees

[cpt kangarooski]

It's somewhat more complicated.

In the US, a work may be a work made for hire under one of two circumstances:

First, if the work is specially ordered or commissioned, the work falls into one of a handful of categories enumerated in the Copyright Act (e.g. part of an atlas, part of a motion picture) and the parties involved expressly agree in a written instrument that they both sign, that the work shall be considered a work made for hire. (N.B.: Unless the work is of one of the specific types, explicitly saying that a work is made for hire doesn't mean anything.)

Second, if the work is prepared by an employee in the scope of their employment, the employer will be considered to be the author, unless the parties involved expressly agree in a written instrument that they both sign, that the work shall not be considered a work made for hire.

But Congress never really addressed what constitutes employment in this situation, so the courts will look at a number of factors to try to figure it out, e.g. who supplied the equipment that was used, where the labor occured, how it was treated for tax purposes, etc. It's entirely possible for a contractor to be considered an employee for the purposes of this part of copyright law, given the right circumstances.

The Wikipedia article on this goes into more depth.

Re:OK fine, they were employees

[gman003]

No no no! Don't introduce those two organizations! You'll reach a critical mass of evil and the world will collapse into a singularity!

Covers

[Dj Stingray]

Can an artist make a "Cover Song" of his/her song out of contract of a big record label, I wonder why artists haven't thought of this. Or do record companies own everything an artist does while in contract?

Re:Covers

[MightyMartian]

It's an amusing in a "they did what?" kind of way. Fogerty had had a very unpleasant breakup from his band and his old record company. About 15 years after CCR released Run Through The Jungle, Fogerty basically lifted the chorus and overall structure of song (which he wrote) for the song Old Man Down The Road. His old record company sued him for copyright infringement. In the end, he did prevail, but the whole thing was ludicrous, and part of a very long-running set of disputes that Fogerty had with his former band, his former label and his former management.

Re:Covers

[afabbro]

First of all, anything they did after changing their name from Jefferson Airplane is downright impossible to listen to.

And anything before they changed the name was even worse.

Funny...

[WillyWanker]

It's funny how the RIAA is so concerned with artists' livelihoods when they're bitching about piracy. But when it actually comes time to pay those artists, or transfer the ownership of the songs they created, the RIAA suddenly starts playing a different tune (pun most certainly intended).

Maybe, maybe not.

[khasim]

Remember, the people in Congress are always up for re-election (unless retiring).

Now if a few groups like The Eagles decide to make this a public issue, then their fans may be persuaded to vote in a different person who is more agreeable to The Eagles' argument.

It's difficult for the various corporate interests to simultaneously claim to be pro-artist-rights with regard to "intellectual property" and also claim that the artist was nothing more than a day-laborer with no rights to the finished product.

Re:Maybe, maybe not.

[Merk42]

Remember, the people in Congress are always up for re-election (unless retiring).

Now if a few groups like The Eagles decide to make this a public issue, then their fans may be persuaded to vote in a different person who is more agreeable to The Eagles' argument.

It's difficult for the various corporate interests to simultaneously claim to be pro-artist-rights with regard to "intellectual property" and also claim that the artist was nothing more than a day-laborer with no rights to the finished product.

And that replacement to the Congressman will be bought and paid for once entering office.

Re:Maybe, maybe not.

[MightyMartian]

The whole "pro-artist" claim was pure unadulterated bullshit even before this latest wrinkle. Look at acts like King Crimson and Tom Petty and the Heartbreakers, who basically were ripped off in every conceivable way. The record companies, even where the contract bound them, simply ignored it, did what they wanted, and then challenged the artists to come after them. Tom Petty, as I understand, had hit records under his belt and went broke at one point. Robert Fripp has had an ongoing war with Universal/UMG over their violation of contracts, even to the point where this huge corporation with a kazillion accountants cannot even provide him with a printout of the the royalties owed to him. Basically, their attitude has been "Don't like it, sue us, and we'll keep this going forever." In Fripp's case, he's called their bluff and has basically told them he is willing to fight on until a judge orders compliance.

Hell, even EMI tried to fuck over the Beatles on royalty payments, basically withholding, in violation of contract, until the surviving members and the estates of Harrison and Lennon went after them. If they have no compunction against picking the most successful music act in history's pockets, imagine being a relatively small-time player.

The record companies have been evil thieving bastards for decades. Guys like Bo Diddley, who recorded seminal and highly influential pieces in the popular music genres were given a pittance, and even saw their publishing rights screwed from them, so they couldn't even at least enjoy any substantial benefit from having written the songs.

Re:Maybe, maybe not.

[zegota]

You really think a significant portion of the electorate is going to vote based on whether or not Billy Joel should be able to retrieve the rights for his songs?

Re:Maybe, maybe not.

[ColdWetDog]

In the immortal words of Frank Zappa (talking to the Devil): "I'll prove to you that I'm bad enough to go to hell, because I've been through it! I have seen it! It has happened to me! Remember, I was signed with Warner Brothers for eight f**king years!!!"

"The music business is a cruel and shallow money trench, a long plastic hallway where thieves and pimps run free, and good men die like dogs. There's also a negative side."

- Hunter S. Thompson

Shocked!

[Baloroth]

'We believe the termination right doesn’t apply to most sound recordings,' said Steven Marks, general counsel for the Recording Industry Association of America, a lobbying group in Washington that represents the interests of record labels. As the record companies see it, the master recordings belong to them in perpetuity,

Really? I definitely didn't see that coming. It is absolutely shocking that the RIAA and co. would think that they own the recording artist's soul.... er music for all time. /sarcasm

OF COURSE the RIAA is going to say that. Nevermind that the law was specifically created to handle this kind of situation, the RIAA doesn't care about the law, the artists, or consumers, they only care about the profits of their cartel. It isn't "work for hire": if that were the case, the artists would get absolutely no royalties (royalties are more or less an admission that you still own the copyright in part). Of course, they often don't get any actual royalties, but that is besides the point. Again, the artist wouldn't go on tour performing the music, the music wouldn't be released under the artist's name, all sorts of things.

The record companies finance the recording and advertising of the work, but they don't create it in any way, neither in the performance nor the writing. They deserve some recompense for that, but 35 years worth is far, far more than enough. They didn't actually do the creative effort, and they shouldn't be able to control the ultimate destiny of the recording. Work for hire might go if they wrote a song and asked someone to sing it. But generally, all creative effort belongs solely to the artist, and they deserve control of their work.

Re:Shocked!

[DavidTC]

The record companies finance the recording and advertising of the work, but they don't create it in any way, neither in the performance nor the writing.

No, even that isn't true. Record companies don't finance the recording or advertising of the work.

They issue a loan to the artist called an 'advance' (Which is spent on making the record.) and require the artist to pay it back before they start making any money.

The idea that it's a work-for-hire is complete and utter nonsense. At no point has the music industry ever operated like that.

Lots of different rights involved.

[AJWM]

The studio may well own the copyright on the sound recording, just as a book publisher may own the copyright on the plates used to print a book, but unless they retain performance rights and other copyrights on the original song music and lyrics (which the original composer/songwriter could revert under this law), they can't let anyone perform that recording, or make additional copies of it. (Just as a book publisher couldn't use his plates to make additional copies of the book if the original copyright has reverted.)

The devil is partially in the details of the contract, of course. But there's no single copyright in a work, it's a collection of rights which can be sliced up and sublicensed all kinds of different ways, and over and over again unless the artist sold/licensed a right exclusively. (Writer/publisher Dean Wesley Smith compares this to a pie from which you can sell slices indefinitely, what he calls The Magic Bakery.)

(Disclaimer: IANAL, but I am a writer with a vested interest in understanding copyright law.)

Even if it's not a work for hire....

[davidwr]

The master recordings is like an original artwork. While they may belong to the studio, the right to make new copies from them belongs to the copyright owner not the owner of the physical copy.

But, without the original recordings, "new copies" can't be made, effectively turning the existing print run into a limited edition. A limited edition of millions, perhaps, but still limited.

Hope the artits have deep pockets

[softWare3ngineer]

because they will need them for the decades of litigation that it will take to get the song rights back.

work for hire requirements

[bioster]

It was recently pointed out to me that I was wrong about how I thought a 'work for hire' worked. So I did 10 seconds of research on wikipedia (yeah yeah, not authoritative, blah blah), and found this page:
http://en.wikipedia.org/wiki/Work_for_hire

Giving it a read might help you arm-chair lawyers, but I'll skip to an easily digested sound bite for everyone:

A "work made for hire" is— (1) a work prepared by an employee within the scope of his or her employment

On the other hand, if the work is created by an independent contractor or freelancer, the work may be considered a work for hire only if all of the following conditions are met: * the work must come within one of the nine limited categories of works listed in the definition above, namely (1) a contribution to a collective work, (2) a part of a motion picture or other audiovisual work, (3) a translation, (4) a supplementary work, (5) a compilation, (6) an instructional text, (7) a test, (8) answer material for a test, (9) an atlas; * the work must be specially ordered or commissioned; * there must be a written agreement between the parties specifying that the work is a work made for hire.

So, put simply you either have to be a regular 9-5er employee (which I think it's clear the vast majority of musicians are not), or you have to fulfil a pretty specific list of requirements which includes an explicit clause in their contract that it be a work for hire. Long story short, they've got no case.

Studios greed will be their undoing

[bobdotorg]

The studios' accounting tricks in their standard artist's contract is what will kill them. Awesome.

FTFA:

Not only have recording artists traditionally paid for the making of their records themselves, with advances from the record companies that are then charged against royalties, they are also exempted from both the obligations and benefits an employee typically expects.

Here's my favorite article about record contracts from the pre-internet era:
http://www.ram.org/ramblings/philosophy/fmp/albini.html

intellectual property law doesn't protect creators

[circletimessquare]

it protects distributors. as such, it is a joke, a lie

and i'm not sure how to fix it. we do need some sort of intellectual property law. but enough sonny bonos in congress, enough lawyer hacks working for disney, extending the concept of intellectual property into realms of absurdity in terms of period of time and type of property, for a few more pennies on the corporate bottom line, and we have a broken system with no easy path to repair

even if they get there way in Congress the IRS

[Joe_Dragon]

even if they get there way in Congress the IRS will be on there ass over the taxes due for work for hire jobs.

Just remember...

[J'raxis]

When watching this fight ensue, just remember that this is the organization that has spent the past 15-20 years fighting "piracy" claiming to be standing up for the rights of their artists.

Minor clarification

[davidwr]

I made the assumption that, as "master recordings," they contained information that was not available in any published copy.

Two examples:

* The master recordings were analog and in a higher fidelity than any published copy, or they were in a digital format and were in a higher fidelity than any published copy

* The master recordings were the tapes used by the engineer to make the "disk master" from which consumer copies are made. Master recordings may have one track per microphone or instrumental pickup, if not more. The "disk master" is probably 2-tracks (stereo) to mirror the consumer product.

As artifacts, the studios own the master recordings. In this way, they are like an original painting.

Business models

[spaceyhackerlady]

I was amused to read in the article how the record companies are increasingly dependent on older releases, since newer releases are distributed through different means that don't involve them. This begs the usual question, who guaranteed that a particular business model would be a valid one forever? I wasn't aware of any such guarantees.

They also invoke ILLEGAL DOWNLOADING as part of the reason for their decline in sales. Gasp. Eek. Yikes. No evidence, of course, but they know it's happening. For sure. Yup.

The fact that many of the new releases are crap doesn't seem to enter in to it...

...laura

Maybe this is a good thing...

[grapeape]

Look at how many popular bands from the late 70's and early 80's are still around now and still popular. Bands like Aerosmith, Van Halen, ACDC, Pink Floyd, Kiss, Elvis Costello, The Cure, Prince, Tom Petty, Fleetwood Mac, The Pretenders, John Melancamp, Bruce Springsteen, etc...are all still around in one form or another and all still selling well and have huge fan bases. Perhaps this the the time when the RIAA's hypocrisy is fully exposed and the tide turns? While money can be very influential in politics so is a support base...I would imagine that it would be rather easy for artists to enlighten and sway popular opinion. While I know its definitely a difficult fight, ultimately the politicians care about reelection more than how greased their palms get in the short term and going up for reelection as "the guy that screwed over Springsteen" surely isn't going to garner the popular vote, the RIAA may have the money but they dont have the electorate.

If they were employees

[tqft]

- call the IRS and audit the bastards for back tax

Re:intellectual property law doesn't protect creat

[camperdave]

One thought I had is that there be two types of copyrights. One type covers private works. This type applies by default and is unregistered. The other type is for commercialized material. In order to perform a work, or release for sale, a copyright must be registered (for a cost). This registered copyright gives the owner rights for one year. At the end of each year, the owner may re-register the work if they intend on continuing to perform or sell it, granting rights for a further year, or the work enters the public domain. Each year the registration fees escalate as a percentage of the previous year's fee.

So, if the starting fee was $1, and the fee increase percentage was 50%, after the first year, it would cost $1.50 to continue to market the work. After the second year, $2.25, etc. At the end of 50 years, it will cost 425 million dollars to renew the copyright. At 70 years, over a billion dollars. The longer the work is on the market, the larger the fee to keep it on the market. Eventually it will not be worthwhile for the owner to hold onto the copyright, and the work will then become public domain.

Rights to a work may be sold to another, but once registered, the copyright fee never gets reset.