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You [Copy]right [Up] My Life (in Perpetuity) 2011/08/16

Posted by nydawg in Copyright, Intellectual Property.
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[Disclaimer: I should probably hold off on posting this until I speak with my good friend IP Lawyer Larry, but it’s just too delicious to wait to hear back, so here goes. ]  There was a fascinating article in yesterday’s NYTimes about “a little-noted provision in United States copyright law” which raises a whole host of new questions related to copyright law, its purpose, function, and future.   “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 — and then, as the calendar advances, every other master recording once it reaches the 35-year mark.   The provision also permits songwriters to reclaim ownership of qualifying songs. Bob Dylan has already filed to regain some of his compositions, as have other rock, pop and country performers like Tom Petty, Bryan Adams, Loretta Lynn, Kris Kristofferson, Tom Waits and Charlie Daniels, according to records on file at the United States Copyright Office. ”

From an archivist’s perspective, I think this gets to the idea of the poor & inadequate description of songs as “sound recordings.”  In 1999 and 2000, singer/songwriters Don Henley and Sheryl Crow “convinced Congress to undo language classifying sound recordings as “works for hire,” which had just been inserted stealthily into another, unrelated bill” because, as Henley points out in a recent interview, ““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.”

Meanwhile, the ostriches with their heads in the sand at the RIAA (and at the labels) are beginning to fight back: ““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,” and some even claim it “would create chaos “because rights for most recordings would be divided among various band members, producers and others who contributed to the recording, and it might require years of litigation to sort out who has what rights.””

So what’s the answer?  According to Henley, “One option is to go in the studio and re-record the songs and make new masters. If you completely re-record the songs, my understanding is that the label doesn’t own those masters any more, you do, that they don’t have anything to say about it if you record songs again from the ground up and everything is new. ”  Well, if that’s the case, then U.S. copyright law for sound recordings is setting itself up to do the exact opposite of  “protecting the rights of copy”, by encouraging artists to re-do and replace the original with a revision.

Meanwhile, another part of this fascinating story, in my opinion, relates to what exactly is copyrighted anyway?  The song?  The lyrics? The sound?  My gut suggests it would be the “music”, so that songwriters (e.g. Paul McCartney or Paul Simon, etc.) would own the rights to their poetry, and then could collect and release the words in a different medium (print). . . . But I could be wrong, and I will have to ask my lawyer friend Larry for his opinion.  the rights of corporations.

The other fascinating part of the story is the whether or not corporations can copyright works of art (or works of hire)?  I remember back in the 1980s a few stories about Heavy Metal suicides including this one about Ozzy Osbourne and this one about Judas Priest fans, and it makes me wonder, if corporations own those rights, then why were musicians (for hire) dragged into court while the corporate labels were excluded?

Here’s a chart of some of the popular recordings that are at risk of termination.  You’d think that with cash-cow names like Michael Jackson, Madonna, Bruce Springsteen, Billy Joel, The Eagles, etc. there would be lots of interest in this story.  Well, we’ll see what happens in a couple years.  Read a bit more o the history of other derivative art works on questioncopyright.org [especially in the comments section].  And to bring it full circle, here’s a part of Frank Zappa’s 1985 testimony against the PMRC,

“Ladies, please be advised: The $8.98 purchase price does not entitle you to a kiss on the foot from the composer or performer in exchange for a spin on the family Victrola. Taken as a whole, the complete list of PMRC demands reads like an instruction manual for some sinister kind of “toilet training program” to house-break all composers and performers because of the lyrics of a few. Ladies, how dare you? The ladies’ shame must be shared by the bosses at the major labels who, through the RIAA, chose to bargain away the rights of composers, performers, and retailers in order to pass H.R. 2911, The Blank Tape Tax: A private tax levied by an industry on consumers for the benefit of a select group within that industry. “

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