Music Copyright War Looming 243
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."
Re:It depends on contracts (Score:5, Informative)
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 (Score:2, Informative)
*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.”
Shocked! (Score:5, Informative)
'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:It depends on contracts (Score:5, Informative)
Re:It depends on contracts (Score:3, Informative)
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:Don't worry, the RIAA owns Congress too (Score:2, Informative)
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.
work for hire requirements (Score:5, Informative)
http://en.wikipedia.org/wiki/Work_for_hire [wikipedia.org]
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:It depends on contracts (Score:4, Informative)
"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 [wikipedia.org] in 1999 but was removed a year later.
Re:It depends on contracts (Score:4, Informative)
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.