Musicians Starting To Assert Copyright Termination Rights Against Record Labels

from the this-ought-to-be-interesting... dept

Fri, Oct 9th 2009 5:34pm — Mike Masnick

There's been a lot of attention recently to the news that the heirs of comic book artist Jack Kirby are alerting companies of plans to take back the copyright on various Kirby characters, using the termination rights in the Copyright Act. This followed a very long and drawn out lawsuit involving a similar attempt over Superman. The details are really complex, but copyright law allows the original creator (or heirs if that creator has passed away) certain opportunities to basically negate a deal that was signed early on to hand over the copyright on certain works. The idea was to help protect artists who signed bad deals, but in practice, it's just been a total mess.

Still, given the success of the Superman saga in getting at least some of the copyrights back, suddenly lots of people are looking to see what other copyrights can be reclaimed. Apparently, a bunch of musicians are now lining up to try to regain their rights from the labels starting in 2013 (the first year musical works are eligible). As the article notes, with record labels still too clueless to figure out how to successfully build business models around new acts, many still rely on sales of old music to bring in a lot of their revenue. If the labels lose the copyrights on much of that music... well... let's just say suddenly The Pirate Bay may be the least of their concerns.

The labels, of course, are aware of all of this, and have been planning a strategy to fight it for years. As was detailed in William Patry's latest book, in 1999 the RIAA was able to get Congress to amend copyright law in the middle of the night (literally), to change musical works to "work for hire," which does not have a termination right associated with it. There were loud protests from many artists, and Congress quickly backed down. Still, the record labels are going to claim that, even without that clearly written in the law, the music created by musicians on the labels were, in fact, "works for hire."

So, get ready for a series of long and drawn out lawsuits from the labels over this issue. They certainly realize that even if they eventually lose, by taking it to court, they can delay that day of reckoning for quite some time. Now, to be clear, I tend to have a problem with the whole concept of these termination rights. If you've contractually agreed to give up your copyright, that should be that. It only causes more problems (as we see) down the road to offer some sort of automatic out, not negotiated into the contract. That said, the very fact that the labels are freaking out about this and intend to go to court against the artists over this should (once again) be a reminder that the labels and the RIAA have never had "the artists' best interests" in mind in whatever they do. The fact that politicians and many in the press still think that the labels represent the artists' interests is pretty ridiculous. Hopefully, things like these upcoming lawsuits will help clarify that for them.

Thank you for reading this Techdirt post. With so many things competing for everyone’s attention these days, we really appreciate you giving us your time. We work hard every day to put quality content out there for our community.

Techdirt is one of the few remaining truly independent media outlets. We do not have a giant corporation behind us, and we rely heavily on our community to support us, in an age when advertisers are increasingly uninterested in sponsoring small, independent sites — especially a site like ours that is unwilling to pull punches in its reporting and analysis.

While other websites have resorted to paywalls, registration requirements, and increasingly annoying/intrusive advertising, we have always kept Techdirt open and available to anyone. But in order to continue doing so, we need your support. We offer a variety of ways for our readers to support us, from direct donations to special subscriptions and cool merchandise — and every little bit helps. Thank you.

–The Techdirt Team

Filed Under: copyright, music, termination rights, work for hire

26 Comments

If you liked this post, you may also be interested in...

Reader Comments

Subscribe: RSS

View by: Time | Thread

..., 9 Oct 2009 @ 5:55pm

no worry
"If the labels lose the copyrights on much of that music... well..."

The labels will just do what they have always done, sell material for which they do not have copyright.
[ link to this | view in thread ]
ChurchHatesTucker (profile), 9 Oct 2009 @ 6:03pm

Argument #3243
For drastically reducing copyright length.
[ link to this | view in thread ]
TheStupidOne, 9 Oct 2009 @ 6:25pm

Re: Argument #3243
I can only hope the politicians recognize this
[ link to this | view in thread ]
Anonymous Coward, 9 Oct 2009 @ 6:53pm

Ah, 2013 is going to be a fun year.
[ link to this | view in thread ]
Falindraun (profile), 9 Oct 2009 @ 7:19pm

I think I just thought of a way to legally kill the patent troll. Now if somebody can just connect the dots...
[ link to this | view in thread ]
Mike C. (profile), 9 Oct 2009 @ 8:36pm

But don't you see.....
If major media hadn't insisted on extending the length of the copyright term so much, the music the artists are looking to recapture would have been in the public domain already. The only people the music industry can truly blame... are themselves.

/that's my theory and I'm sticking to it.
[ link to this | view in thread ]
Felix Pleșoianu, 9 Oct 2009 @ 10:06pm

"If you've contractually agreed to give up your copyright, that should be that."

Because you can't be cheated into signing a contract? They thought it was a good deal at the time. Turns out, it wasn't. If the law punishes con artists, why not these profiteering record labels?
[ link to this | view in thread ]
harbingerofdoom (profile), 10 Oct 2009 @ 12:56am

@thestupidone:
politicians cant see their own shoes if there is a $5.00 bill sitting next to them.

@felix plesoianu:
if you got cheated into a bad contract or there was misrepresentation or other reasons to make the contract null and void, then it needs to go through existing civil court processes. the last thing we need to do is ask the government to step in and try to make something like this a criminal violation when it clearly is not.

my own thoughts:
the initial few of these will wind up going to court only to be tied up in idiotic paperwork for years. the idea that they are ALL works for hire is laughable, but the problem is a great many songs ARE just that, works for hire...
for example, if i asked elton john to write 5 songs for a movie based around 'X' theme they are in fact, a work for hire to which he does not own any rights to with the sole exception of what rights i, as the commissioner of said works, give him as part of the deal. a great many songs were in fact written for other artists to sing. they could by technicality fall into this category.
I dont like it at all, but honestly, it all depends on the contract the artist signed and what rights they retain as part of the deal. you dont always get a 'do-over' simply because you signed a raw deal.... especially if there is nothing overtly illegal about it.
[ link to this | view in thread ]
Sheinen, 10 Oct 2009 @ 3:57am

Forgive me for thinking that you should read through a contract and make sure it suits your needs before signing it.

MOST record labels issue dodgy contracts which result in the artist actually owing them money. These people can't then turn around and say 'that's not fair, I'm pulling out' when they should have noted this potential flaw before they put pen to paper.

It sets a dangerous precedent to say that you can walk free of any contractual obligations because you don't like them anymore!
[ link to this | view in thread ]
NullOp, 10 Oct 2009 @ 6:01am

bloodsuckers
Given the opportunity, a leach will always try to stay on the host! It's no different in the music business. The labels are leaches and the artists are hosts, plain and simple. Scrape em off!
[ link to this | view in thread ]
Overcast (profile), 10 Oct 2009 @ 8:04am

Good, it will give them someone to sue other than consumers.
[ link to this | view in thread ]
gene, 10 Oct 2009 @ 8:17am

They should quit the RIAA
The RIAA sues an account. Then they assume it was the account holder which downloaded. It could have been the person next door entering through a network or could have been a friend in the house. Yet, the court complaint names the person stating they have the evidence that person did this when, really, they do not know. I was a victim of fraud when Directv on April 10, 1997 decided to turn off the movie channels I paid for. They held those channels hostage trying to get me to pay more. 31 states attorney general's sued and Directv paid 11 million. 6 years later, directv sued me stating that the access card I bought in an attempt to stop that 1997 theft was illegal. In essence stating I had no such right to defend myself from a fraud. In the end, they had the litigation money and I didn't so I lost important civil rights to them. A corporation now owns my civil rights. Worse, there is no one sworn to up hold laws will defend the public facing this kind of litigation terrorism. This is my web site. We need to find a way to defend from false court claims designed to use the court to take the public's money. http://theft-by-satellite-company.com/index.html
[ link to this | view in thread ]
..., 10 Oct 2009 @ 8:23am

Re: dangerous precedent - for whom?
"It sets a dangerous precedent to say that you can walk free of any contractual obligations because you don't like them anymore!"

Your statement is rather broad. For example, there are many instances where a contract is claimed without any paper and pen in use. Some of these so called contracts have been disputed, successfully I think. Contracts can be nullified for many reasons, one of which is when it is determined to be an unconscionable contract. Another would be when one party to the contract is not of age.

http://en.wikipedia.org/wiki/Unconscionability
[ link to this | view in thread ]
ERH, 10 Oct 2009 @ 9:52am

Re:
RE: Forgive me for thinking that you should read through a contract and make sure it suits your needs before signing it.

Unfortunately, too many contracts signed today are done so under duress. For example, I walk into a doctor's office and to become a patient of that office, I must sign a disclosure statement to allow the doctor to talk to other doctor's about my medical problems - the fine print? If I don't sign, I don't get medical treatment. For copyright, if I don't sign, I don't get necessary exposure to pursue my dreams. Also, a lot of people do not know the full ramifications of signing early on in the game.

Certainly we should all be careful of agreements we sign, but I still think there should be some rules about what type of clauses contracts cannot contain to be "in good faith". Any contract that uses duress to force someone to give up their prevailing rights (for example, as an author, I have an innate right to my copyright) should have some requirement for the benefit in doing so to be clearly outlined and further cannot be contraviened by circumstance (eg, the music company said I'd earn $1,000 + royalties. If I end up owing them money, the contract is not in good faith, even if I get my $1,000 + royalties).

When it comes to copyright, publishers, music industry, whomever - those groups typically create contracts that are very one-sided until the author makes it big enough to force them to change the industry practice on a one-off basis. It's a filthy practice, and no one stops them anywhere because there's no value seen in the material until there's fame backing it. Those getting into the agreements are usually too green and new to see it coming; and if they're not, they're still shoehorned into signing something they know is bad because there's no other reasonable path to take. Those types of contracts shouldn't be allowed in the first place.
[ link to this | view in thread ]
bigpicture, 10 Oct 2009 @ 1:48pm

Contracts?
"If you've contractually agreed to give up your copyright," Obviously you don't know a lot about contracts!!! There are very few contracts that are "evergreen", most have a stipulated "Term". And when that term is up the parties can terminate without breach, or choose to extend the "Term" or renegotiate new "Terms and Conditions".

The creator of the copyrighted works by law initially owns the copy "rights" on that works. If they make deals to trade away some of those "rights" those are separate contractual agreements and should be outside of the Copyright Act. These Recording Label Jerks are trying to get that clear and separate distinction (of completely separate deals) rolled up into the Copyright Act. NICE TRY YOU GREEDY BASTARDS!!!. EVERYONE NOW KNOWS, INCLUDING THE ARTISTS AND FANS THAT THE RECORDING COMPANIES ARE NO LONGER NEEDED!!!
[ link to this | view in thread ]
minijedimaster (profile), 10 Oct 2009 @ 6:36pm

Re:
Well depending on whether the Mayan's were right, it could very well be a "fun" year.
[ link to this | view in thread ]
Anonymous Coward, 11 Oct 2009 @ 3:58am

Well is not a get out of contract you can sell something that you don't have. The author have 50 year of copyright and you sell that in that contract. Now congress decide to give another 20 year, to whom should it give it? to the original author (or it heirs) or to the one that bought the previous 50?. Due that the politician is "officially" doing it for the author they should give it to the author but due that the one that is lobbing it is the one with the contract you make it a compromise you hand it by default to the buyer but put a very cumbersome process so the author con reclaim.

Result automatic mess.
[ link to this | view in thread ]
Keith, 11 Oct 2009 @ 6:03am

So the author of this article states in the last paragraph that what the labels are doing shows that they never had the artists best interests in mind. Yet, the author has a problem with the termination policy stating that if you contract to give up your rights, "...that should be that." So...if you realize the labels purposely set out to get artists into an exploitative contract why would you not have a way for artists to get out? Especially, if the heirs are more educated than the original creator of the work in copyright and contracts. Companies place tons of escape clauses into contracts, some that they may execute for reasons that seem unjustified but the artist is often deadlocked. The artist should have a multiple options to exit also.
[ link to this | view in thread ]
Marcel de Jong (profile), 12 Oct 2009 @ 4:08am

Re: Re:
if we live to see it at all.
[ link to this | view in thread ]
Sheinen, 12 Oct 2009 @ 6:12am

Re: Re:
I agree to an extent, specifically in regards to contracts signed under duress. But I think the defenition of 'duress' is a little too flexible.

In your medical analogy you were well within your rights, having looked through that contract, to go somewhere else with a more suitable offer. So are musicians who are offered a terrible deal.

Not reading a contract properly is like promising to help a stranger without asking any questions - You're likely to end up bleeding from your anus in an alley with no-one to blame but yourself.

If you ask the guy and he tells you what he's going to do, but you do it anyway you are 10 times as dappy.

If the guy had a knife held to your ribs and there were no other options then you're under duress and I'll let you off.
[ link to this | view in thread ]
Sheinen, 12 Oct 2009 @ 6:22am

Re: Re: dangerous precedent - for whom?
I'll use 'Williams v. Walker-Thomas Furniture Co., 350 F.2d 445 (C.A. D.C. 1965)' as an example of what I mean -

Walker-Thomas agreed to have all of their furniture paid off as a total sum, meaning that until the total debt was paid they didn't own any single peice.

It wasn't until they couldn't pay the loan and had to return all of that furniture that they had a problem with this deal...

Surely they should have thought about that possibility when they agreed to it originally?

I appreciate that they won the case and Unconscionability was the biggest reason behind it and I also appreciate the moral concerns of enforcing a contract that so blatantly cheats people out of what should be theirs. But at the end of the day, if they weren't happy with the offer they shouldn't have signed it!
[ link to this | view in thread ]
Dean Wermer, dean emeritus Faber College, 12 Oct 2009 @ 9:20am

Re: Re: Re: dangerous precedent - for whom?
If all of the record labels are offering a recording contract with essentially the same terms regarding copyright ownership, and such terms (indeed most of the terms in the contract) are non-negotiable, as some have noted above, has there really been a "meeting of the minds" and a freely entered contract? Or, is this more in the nature of an adhesion contract? Throw in the possibility that maybe it was not a coincidence that all the labels offered the same terms (i.e., was there anti-competitive behavior in violation of antitrust laws?), and sprinkle it with the likelihood in many of these early recording contracts that the artist did not have any or adequate legal representation, and it becomes much more difficult to conclude that the artists should have just refused to sign the contracts in the first place. Nor, as one commenter above has suggested, could most of these deals be reasonably considered to be actual "work for hire" deals (such as soundtrack work).
[ link to this | view in thread ]
www.eZee.se (profile), 14 Oct 2009 @ 8:48am

"The enemy of my enemy is my friend"

I really dont give a flying **** about the greedy artists (although i do feel some pain for the struggling ones) and most of the "artists" who signed into a label, but I am filled with joy knowing the industry is going to have to fight tooth and nail to keep their large piece of the pie.. either way its going to be damaging for them, both internally and in the eyes of the public as they cant use the "protecting the artists" in this.

I hope these sons of bitches die a slow....... painful....... death, then burn in hell for all eternity.

Plus I want to be able to p!ss on their graves.

(Yes, I know, my hatred for the labels needs therapy)
[ link to this | view in thread ]
Steve, 14 Oct 2009 @ 4:18pm

Re: no worry
"The labels will just do what they have always done, sell material for which they do not have copyright."

Problem for them there is that precedent setting judgments have been rendered in their favor many times already. Doing what you suggest would financially ruin them overnight in suits brought against them by copyright holders. They'd be run over on the very road that they themselves paved so to speak.
[ link to this | view in thread ]
Les, 31 Aug 2011 @ 7:03pm

Termination Of Copyright
You said: "I tend to have a problem with the whole concept of these termination rights. If you've contractually agreed to give up your copyright, that should be that."

Oh, I see. Just because you had a crappy bargaining position when you were young, entitles the companies to profit forever?
[ link to this | view in thread ]
Les, 31 Aug 2011 @ 7:08pm

Termination Of Copyright
You said: "I tend to have a problem with the whole concept of these termination rights. If you've contractually agreed to give up your copyright, that should be that."

Oh, I see. Just because you had a crappy bargaining position when you were young, entitles the companies to profit forever?
[ link to this | view in thread ]