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

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.

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

[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: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.

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).

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.”

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.

[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: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..

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.

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.

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.)

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.

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.