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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."
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.
SJW: Someone who has run out of real oppression, and has to fake it.
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.
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...
"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.
"MIT betrayed all of its basic principles."
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).
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.”
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.
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..
'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.
"None can love freedom heartily, but good men; the rest love not freedom, but license." --John Milton
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.
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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.
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.
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.)
-- Alastair
because they will need them for the decades of litigation that it will take to get the song rights back.
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.
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.
The studios' accounting tricks in their standard artist's contract is what will kill them. Awesome.
FTFA:
Here's my favorite article about record contracts from the pre-internet era:
http://www.ram.org/ramblings/philosophy/fmp/albini.html
__ Someday, but not this morning, I'll finally learn to use the preview button.
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.
The world's burning. Moped Jesus spotted on I50. Details at 11.
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.
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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.
"All these years believing you're the signified monkey, only to find out you're just a big hunk of nobody cares."
"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.
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.
You can lead a man with reason but you can't make him think.