Aug 16 2011

Artists and Record Companies To Wage War Over Song Rights

In the Mid-1970s, Congress changed the Copyright Act to allow songwriters and composers to file claims to “reclaim” their music from the recording companies and publishing houses that owned the rights to them. The law was made effective on January 1, 1978 and required artists to wait 35 years before they could file for reclamation rights. It also required artists to provide two years worth of notice to the rightsholders prior to being allowed to reclaim them. That means that January 1, 2013 is the first day that these song rights will become available to the artists; with the two year notice requirement, January 1, 2011 was when the notices began pouring in. The two year notice gives the legal battle over the rights time to get started if not completed. And the battle has begun because the 35 year period for some of the greatest music ever recorded – by artists like Bruce Springsteen (Darkness on the Edge of Town), Billy Joel (52nd Street) and Michael Jackson (Thriller) – has arrived.
The recording industry, already reeling from the effect the internet and digital recording has had on its monopoly over music, is not likely to let this issue pass without a fight. The Recording Industry Association of America (RIAA) whose last foray into the courtroom was those flurry of lawsuits against small folks who downloaded songs over the internet, is arguing that the master recordings belong to the companies forever but were “Works for hire” because the musicians were essentially employees of the companies.

The U.S. Constitution requires the initial owner of a copyright in a work be the author. In most cases, the author is the individual or group of individuals that actually creates the work. However, when a work is created by an employee as part of his or her job, or when certain kinds of works are created on behalf of a client and all parties agree in writing to the designation, a work may be a “work for hire”. The author of a work for hire is not the actual creator. Instead, the author is the person or entity that hired the actual creator. The U.S. Constitutional requirement is why the employer or paying client is considered the “author” in a work for hire, contrary to standard usage of the word “author,” because a law directing copyright be awarded to an employer or client instead of the author would be unconstitutional. Many employees who create intellectual property for their companies have no IP rights due to the work for hire doctrine. The RIAA is saying that Bruce, Billy, Michael and the others are no different than the software engineers and lab technicians of other industries.
The circumstances in which a work is considered a “work made for hire” is determined by the language of the United States Copyright Act of 1976:

A “work made for hire” is— (1) a work prepared by an employee within the scope of his or her employment; or (2) a work specially ordered or commissioned for use as a contribution to a collective work, as a part of a motion picture or other audiovisual work, as a translation, as a supplementary work, as a compilation, as an instructional text, as a test, as answer material for a test, or as an atlas, if the parties expressly agree in a written instrument signed by them that the work shall be considered a work made for hire. (17 U.S.C. § 101)

But artists are usually charged for the costs of recording their music by the music companies -fees which are reclaimed by the company once the music starts selling. This process, called “recoupment,” may make it very difficult for the companies to argue that the artists were mere employees. There are essentially no recoupment rights
in any other industry so comparisons to engineers and lab techs is not applicable.

The act also says nothing about foreign acts who signed a contract outside the US but are now seeking to reclaim the American versions of their songs. Legal cases are expected over those claims as well. In the meantime, artists are filing for their rights as soon as possible and the issue will quickly come to a head as January 1, 2013 approaches. Some artists may simply re-negotiate with the companies to avoid the legal battle. But full ownership of their songs is likely to be so important and personal an issue to the artist and with so much money at stake for a weakened industry, this legal fight is more than likely going to be decided not by agreement but by the Supreme Court.

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