RUMOR MILL
“I look at my masters as something I created,” Henley argued. “The work for hire clause attempts to state that the record labels are the creators of these works, which is absurd. The artists create these works and they should own them. It’s as simple as that.”
——Don Henley
Tuesday, September 6, 2011
MUSIC BIZ VS. THE TERMINATOR
Labels and Artists Brace Themselves for a Legal Battle That Could Reshape the Industry
In mid-August, the N.Y. Times broke what could turn out to be the biggest music business story of the decade: about the battle that’s shaping up between the music industry and artists over ownership of their master recordings. Here’s the story so far.
When copyright law was revised in the mid-1970s, musicians 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, recordings from 1979 will be in the same situation, as will every subsequent master once it reaches the 35-year mark.
The provision also permits songwriters to reclaim ownership of qualifying songs, reporter Larry Rohter pointed out. Bob Dylan has already filed to regain some of his compositions, as have Tom Petty, Bryan Adams, Loretta Lynn, Kris Kristofferson, Tom Waits and Charlie Daniels, according to records on file at the U.S. Copyright Office. “In terms of all those big acts you name, the recording industry has made a gazillion dollars on those masters, more than the artists have,” Don Henley told Rohter in a July interview published on Aug. 16. “So there’s an issue of parity here, of fairness. This is a bone of contention, and it’s going to get more contentious in the next couple of years.” No shit.
“This is a life-threatening change for them, the legal equivalent of Internet technology,” said Kenneth Abdo, a lawyer who leads a termination rights working group for NARAS. “We believe the termination right doesn’t apply to most sound recordings,” argued RIAA General Counsel Steven Marks. 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.
Arguing that Congress has an obligation “to preserve fairness and justice for artists,” Rep. John Conyers (D-MI) last week called for a revision of copyright law to remove ambiguities in the current statute about who is eligible to reclaim ownership rights to songs and masters.
“For too long the work of musicians has been used to create enormous profits for record labels, radio stations and others, without fairly distributing these profits to the artists,” said Conyers, who’s the ranking Democrat on the House Judiciary Committee.
But the Big Four aren’t going to give up ownership of valuable master recordings without a fight, obviously, as a prolonged legal battle of fundamental significance to the music business takes shape.
The RIAA maintains that most recordings aren’t eligible for termination rights because they’re “works for hire,” collective works or compilations created by musicians who are, in essence, employees of the labels. Politically, Conyers and his fellow Dems tend to support the artists, while Republicans are considered to be more supportive of big business. For that reason, lawyers and managers have expressed doubts that a bipartisan agreement can be reached on the main issues relating to music copyrights.
“Since I’m going to have to be working with them, I don’t want to tell you [Republicans] are conservative and corporate-oriented,” said Conyers. “That won’t help. I’ll be going to [Judiciary Committee Chairman] Lamar Smith after Labor Day to talk to him about this, about getting a little fairness into the entertainment industry.”
When Congress passed the copyright bill in 1976, it created an important exception to the general principle that the person who creates a work of art is its author, Rohter explained. At the behest of book publishers and other companies that feared their interests would be adversely affected, the law declared that when a work has been “made for hire,” the employer, not an employee, should be considered its author.
The law generally defined a work made for hire as anything “prepared by an employee within the scope of his or her employment,” like a newspaper article. It also stated that “a work specially ordered or commissioned as a contribution to a collective work,” like a motion picture, a translation or an atlas, should be considered a work for hire. Sound recordings, however, were left off of that list.
But in 1999 language that would have explicitly included sound recordings as works for hire was inserted into an omnibus bill and was approved virtually without debate. A few months later the congressional aide reported to be responsible for that action, Mitchell Glazier, then the copyright counsel to the Republican chairman of the Judiciary Committee, switched jobs, becoming the RIAA’s chief lobbyist, and he continues to work for the group.
“That amendment was essentially passed in the middle of the night,” copyright expert William F. Patry told Rohter. Congressional procedure allows for such changes, but only if they are merely technical matters, he said, “and clearly this wasn’t technical.”
In response, the NARAS-sanctioned Recording Artists Coalition, led by Henley and Sheryl Crow, mobilized to overturn the amendment, which would have given the record labels control over their master recordings in perpetuity. A year later the artists were able to persuade Congress to undo the work-for-hire language for songs and recordings, and that seemed to have settled the issue.
“We were concerned with a lot of issues in recording contracts that we considered to be unfair, and this was one of the most glaring,” Henley explained. “We knew that 2013 was going to be a deadline, and that recordings from 1978 would be the first battle. But let’s go back and talk about the history of work for hire for a minute. “Work for hire” was never intended to apply to sound recordings. That came about because of movies and books. Sound recordings somehow got added to the list, then taken off again.
“Artists getting their masters back is a personal issue,”he continued. “I don’t want to presume to speak for others, but I know that I want mine back. If any artist wants to get his masters, he should be able to do that. But I don’t know if the labels are interested in going down that road. I know there’s been some talk of an industry-wide global settlement. We’re certainly willing to listen, but I don’t know of any going on at this moment. It’s still an artist-to-label matter at this point.
“Of course, artists being the bullheaded lot they are, many maybe wouldn’t want to join in that settlement, and then what have you got? It seems to me a majority, a great majority, would have to buy into this in order for it to work. Anything that involves artists is a herding cats situation. That’s one of reasons, frankly, that artists have been so mistreated and abused over so many decades in the recording industry—because they are not organized…
“I look at my masters as something I created,” Henley argued. “The work for hire clause attempts to state that the record labels are the creators of these works, which is absurd. The artists create these works and they should own them. It’s as simple as that. I want to be able to pass them on to my kids. It’s part of their legacy, or should be.”
Not surprisingly, the RIAA doesn’t see it that way. “By its own terms the statutory language makes clear that the law on termination was simply being restored to its previous state, and that Congress’s action was to have no effect on its interpretation,” the org asserted in a written statement.
Neither the labels nor the artists seems to be relishing a confrontation in court, Rohter pointed out. For the labels, any definitive judicial ruling that is adverse could be especially costly.
“It’s not in anybody’s interests to have years and years of litigation,” said attorney Lisa Alter, who reps numerous artists or artists’ estates on copyright matters. “The intent of Congress was clearly to protect authors who make bad deals in their eagerness to get their work out there.”
Stay tuned, kiddies—this one’s got legs.
When copyright law was revised in the mid-1970s, musicians 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, recordings from 1979 will be in the same situation, as will every subsequent master once it reaches the 35-year mark.
The provision also permits songwriters to reclaim ownership of qualifying songs, reporter Larry Rohter pointed out. Bob Dylan has already filed to regain some of his compositions, as have Tom Petty, Bryan Adams, Loretta Lynn, Kris Kristofferson, Tom Waits and Charlie Daniels, according to records on file at the U.S. Copyright Office. “In terms of all those big acts you name, the recording industry has made a gazillion dollars on those masters, more than the artists have,” Don Henley told Rohter in a July interview published on Aug. 16. “So there’s an issue of parity here, of fairness. This is a bone of contention, and it’s going to get more contentious in the next couple of years.” No shit.
“This is a life-threatening change for them, the legal equivalent of Internet technology,” said Kenneth Abdo, a lawyer who leads a termination rights working group for NARAS. “We believe the termination right doesn’t apply to most sound recordings,” argued RIAA General Counsel Steven Marks. 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.
Arguing that Congress has an obligation “to preserve fairness and justice for artists,” Rep. John Conyers (D-MI) last week called for a revision of copyright law to remove ambiguities in the current statute about who is eligible to reclaim ownership rights to songs and masters.
“For too long the work of musicians has been used to create enormous profits for record labels, radio stations and others, without fairly distributing these profits to the artists,” said Conyers, who’s the ranking Democrat on the House Judiciary Committee.
But the Big Four aren’t going to give up ownership of valuable master recordings without a fight, obviously, as a prolonged legal battle of fundamental significance to the music business takes shape.
The RIAA maintains that most recordings aren’t eligible for termination rights because they’re “works for hire,” collective works or compilations created by musicians who are, in essence, employees of the labels. Politically, Conyers and his fellow Dems tend to support the artists, while Republicans are considered to be more supportive of big business. For that reason, lawyers and managers have expressed doubts that a bipartisan agreement can be reached on the main issues relating to music copyrights.
“Since I’m going to have to be working with them, I don’t want to tell you [Republicans] are conservative and corporate-oriented,” said Conyers. “That won’t help. I’ll be going to [Judiciary Committee Chairman] Lamar Smith after Labor Day to talk to him about this, about getting a little fairness into the entertainment industry.”
When Congress passed the copyright bill in 1976, it created an important exception to the general principle that the person who creates a work of art is its author, Rohter explained. At the behest of book publishers and other companies that feared their interests would be adversely affected, the law declared that when a work has been “made for hire,” the employer, not an employee, should be considered its author.
The law generally defined a work made for hire as anything “prepared by an employee within the scope of his or her employment,” like a newspaper article. It also stated that “a work specially ordered or commissioned as a contribution to a collective work,” like a motion picture, a translation or an atlas, should be considered a work for hire. Sound recordings, however, were left off of that list.
But in 1999 language that would have explicitly included sound recordings as works for hire was inserted into an omnibus bill and was approved virtually without debate. A few months later the congressional aide reported to be responsible for that action, Mitchell Glazier, then the copyright counsel to the Republican chairman of the Judiciary Committee, switched jobs, becoming the RIAA’s chief lobbyist, and he continues to work for the group.
“That amendment was essentially passed in the middle of the night,” copyright expert William F. Patry told Rohter. Congressional procedure allows for such changes, but only if they are merely technical matters, he said, “and clearly this wasn’t technical.”
In response, the NARAS-sanctioned Recording Artists Coalition, led by Henley and Sheryl Crow, mobilized to overturn the amendment, which would have given the record labels control over their master recordings in perpetuity. A year later the artists were able to persuade Congress to undo the work-for-hire language for songs and recordings, and that seemed to have settled the issue.
“We were concerned with a lot of issues in recording contracts that we considered to be unfair, and this was one of the most glaring,” Henley explained. “We knew that 2013 was going to be a deadline, and that recordings from 1978 would be the first battle. But let’s go back and talk about the history of work for hire for a minute. “Work for hire” was never intended to apply to sound recordings. That came about because of movies and books. Sound recordings somehow got added to the list, then taken off again.
“Artists getting their masters back is a personal issue,”he continued. “I don’t want to presume to speak for others, but I know that I want mine back. If any artist wants to get his masters, he should be able to do that. But I don’t know if the labels are interested in going down that road. I know there’s been some talk of an industry-wide global settlement. We’re certainly willing to listen, but I don’t know of any going on at this moment. It’s still an artist-to-label matter at this point.
“Of course, artists being the bullheaded lot they are, many maybe wouldn’t want to join in that settlement, and then what have you got? It seems to me a majority, a great majority, would have to buy into this in order for it to work. Anything that involves artists is a herding cats situation. That’s one of reasons, frankly, that artists have been so mistreated and abused over so many decades in the recording industry—because they are not organized…
“I look at my masters as something I created,” Henley argued. “The work for hire clause attempts to state that the record labels are the creators of these works, which is absurd. The artists create these works and they should own them. It’s as simple as that. I want to be able to pass them on to my kids. It’s part of their legacy, or should be.”
Not surprisingly, the RIAA doesn’t see it that way. “By its own terms the statutory language makes clear that the law on termination was simply being restored to its previous state, and that Congress’s action was to have no effect on its interpretation,” the org asserted in a written statement.
Neither the labels nor the artists seems to be relishing a confrontation in court, Rohter pointed out. For the labels, any definitive judicial ruling that is adverse could be especially costly.
“It’s not in anybody’s interests to have years and years of litigation,” said attorney Lisa Alter, who reps numerous artists or artists’ estates on copyright matters. “The intent of Congress was clearly to protect authors who make bad deals in their eagerness to get their work out there.”
Stay tuned, kiddies—this one’s got legs.
