Bob Marley's Work Declared 'Work For Hire,' Family Can't Get Rights Back

from the this-could-be-big dept

Mon, Sep 13th 2010 4:28pm — Mike Masnick

Reuters is reporting on the fact that Bob Marley's family has lost a case where they attempted to get control over certain rights concerning his most famous songs. I haven't yet seen the actual ruling (anyone have it?), and the Reuters writeup is a bit confusing at points, but the point that caught my attention was that the judge ruled that Universal Music holds the rights to Marley's music, because Marley's work was done on a "work for hire" basis:

Cote concluded that Marley's recordings were "works made for hire" as defined under U.S. copyright law, entitling UMG to be designated the owner of those recordings, for both the initial 28-year copyright terms and for renewals.

"Each of the agreements provided that the sound recordings were the 'absolute property' of Island," Cote wrote. "Whether Marley would have recorded his music even if he had not entered the recording agreements with Island is beside the point."

She added that it was irrelevant that Marley might have maintained artistic control over the recording process. What mattered, she said, was that Island had a contractual "right" to accept or reject what he produced.

If you've been paying attention to the music legal world lately, you know that the whole question of whether or not sound recording deals were "works made for hire" is a multi-billion dollar question right now. In fact, it's such a big deal that the RIAA had a Congressional staffer named Mitch Glazier sneak four words into a big Congressional bill in the middle of the night when no one noticed making all sound recordings into works-made-for-hire -- thus depriving artists of the right to regain control over their copyrights via the copyright termination process (purely as a coincidence, we're sure, Glazier was officially hired at over $500k/year by the RIAA a few months later -- and he's kept that job ever since). Thankfully, people noticed this underhanded move, and a campaign from musicians forced Congress to fix Glazier's trick.

The legal issue here is a bit down in the weeds, but effectively, along with copyright extension, Congress does allow content creators to "reclaim" their copyright -- regardless of any legal contract saying otherwise -- at certain "termination" points. The big exception? If the work in question was done as a "work-for-hire," and certain types of works were deemed "work-for-hire" in an extremely arbitrary fashion (basically based on who had political clout in the negotiations). I actually think copyright terminations make very little sense, and it's a weak "response" to ever-lengthening copyright law. A much better solution would be to vastly shorten copyright's term, and then not have to deal with termination issues. However, the fact that the recording industry fought it so hard shows how their claims of being looking out for the best interests of musicians is pure hogwash.

However, with musicians gearing up to exercise termination rights, and record labels looking for any possible way to keep those rights for themselves -- including any possible way to twist the law to say existing works were, in fact, done as work-for-hire. Of course, the fact that they had Glazier slip changes into the law makes it pretty damn clear that they know, quite clearly, that such works were not really work-for-hire.

While I don't know if there was a specific contractual anomaly with Marley's contract, the fact that a judge found those works to be "works-for-hire," suggests that the same may be true of other recording artists' contracts, and you can bet that the RIAA lawyers are dancing a happy dance with such a ruling coming out. Some musicians, however (you know, the ones the RIAA pretends to represent), may have just had the rights they thought they were about to get back, ripped out from under them.

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Filed Under: bob marley, copyright, copyright termination, works for hire, works made for hire
Companies: universal music

35 Comments

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Jay (profile), 13 Sep 2010 @ 4:52pm

Google version

Uhm... Ignore the colored text. I did a quick search and don't know how to take that part out.
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Terry Hart (profile), 13 Sep 2010 @ 4:58pm

Since the recordings in this case were made prior to 1978, the "work for hire" issue was governed by the 1909 Copyright Act, which has a slightly different definition of a work made for hire than the 1976 Copyright Act.

The court opinion can be found at http://www.scribd.com/doc/37357484/Bob-Marley-Fifty-Six-Hope-Road-Music-v-UMG-Recordings-S-D-N-Y-Sep t-10-2010
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out_of_the_blue, 13 Sep 2010 @ 5:00pm

Corporatists and lawyers can't reason from first principles.
So I'll lay out what *should* be.

1) Bob Marley *absolutely* and *always* owned the copyright. That it was stolen by a corporation is what's irrelevant.

2) HOWEVER, Bob Marley (and family) had 28 years to profit from a *one-time* performance, longer (by 11 years?) than is allowed for patents of useful *goods*, so all is now in public domain.

3) That leaves the recording masters in question, then and now, because in physical possession by corporation, yet what's on them was owned by Marley. The contract covers only what's done to profit from that combination. The masters should now be transferred to a national archive or trust set up for the purpose of public dissemination.

4) Copyright length has to be rolled back from its present "forever".

Don't bother to tell me that "the law" isn't so, and isn't going to be; only shows that you too have no bedrock principles, no moral compass, are but a hapless pawn of corporations, without even yelping about it.
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Anonymous Howard, 13 Sep 2010 @ 5:09pm

Wow that just seems wrong. How does UMG possible spin this.
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average_joe (profile), 13 Sep 2010 @ 5:27pm

Re:
You beat me to it. Love your blog, by the way. :)
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Anonymous Coward, 13 Sep 2010 @ 5:40pm

Re:
Was going to post this.

Not much case law on whether sound recordings can be works made for hire, even if contracts say so, post 1978, but I expect we'll get some in the not too distant future. Decent legal arguments on both sides I think b
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Patrik, 13 Sep 2010 @ 5:46pm

Re: Corporatists and lawyers can't reason from first principles.
Re: point 4:

I'm mostly of the opinion that the proper length for copyright is the duration of the author's life. It would be simple enough. It would make it relatively easy to know if something was cleared for use, just look up info to see if the person is dead or not.

I don't think there's anything wrong with a person being able to capitalize on a profitable piece of art for their lifetime. It wouldn't inhibit other advances--especially since the opinion on the net is that people will still create in the absence of any monetary incentive; then what does it matter if one artist does something amazing and vanishes with the cash? Why should it upset anyone that the artist doesn't have to work? Or how is it bad that some people DO create great work because of a monetary incentive? Supposedly, there will be an unstoppable march toward greatness going on by everyone else in the arts anyway, right?

Also, I don't really like the idea of copyright being extended down generation to generation. That seems... odd to me. There's certainly nothing wrong with passing down the accrued income from the original artist's work, but I don't know about extending the monopoly on exploitation of the works across generations. It just doesn't sit right with me.

Of course, the whole "length of author's life" becomes tricky when you're dealing with work by multiple creators. A lot of songs now have multiple writers, so whose life are we talking about? I don't really know of a lot of real world solutions for collaborative works. CC doesn't seem to really cover the bases, especially on the more experimental ideas (For instance: recording a bunch of different performers for an album, and then making each audio track available for remixing while still allowing each individual creator control over his/her specific contributions--including type of CC license (some ppl are NC, others not, what happens once the pieces are put together?) or traditional copyright... it quickly becomes a legal/logistical nightmare)
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Karl (profile), 13 Sep 2010 @ 5:52pm

Legal hypocrisy, much?
Since the recordings in this case were made prior to 1978, the "work for hire" issue was governed by the 1909 Copyright Act

So, the 1978 law's doubling of copyright lengths can be applied retroactively, but its laws protecting artists from bad deals can't?

That's just swell. Good job, legal system!

Also, thanks for the link. Aside from the ruling, it's also a good inside look at a standard recording contract.
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Terry Hart (profile), 13 Sep 2010 @ 5:59pm

Re: Re:
Thanks! And I hadn't realized before posting the link that someone had beat ME to it :)
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Ron Rezendes (profile), 13 Sep 2010 @ 6:09pm

Re: Re: Corporatists and lawyers can't reason from first principles.
I mostly of the opinion that copyright should last 10 or possibly even 20 years, period.
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Anonymous Coward, 13 Sep 2010 @ 6:10pm

I dont understand. Whenever I do any work, I sign something that says what I do is work-for-hire. This is an easy thing to put in a contract. I'm sure the contracts musicians sign are very precisely worded, and if they say it is a work for hire, it is. I see why someone would want to make something a work for hire, and why other people would want to make it not a work for hire, and whether or not it is can be worked out by the parties to the agreement. Why do we have laws and courts deciding things for all contracts on this issue?
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average_joe (profile), 13 Sep 2010 @ 6:13pm

Re: Re: Re:
LOL! I just saw that too. We're too slow...
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Karl (profile), 13 Sep 2010 @ 6:26pm

Re: Re: Corporatists and lawyers can't reason from first principles.
I don't think there's anything wrong with a person being able to capitalize on a profitable piece of art for their lifetime.

Without copyright laws, that person would be able to capitalize on that art. They just wouldn't be able to prevent other people from also being able to capitalize on it.

Also, I don't really like the idea of copyright being extended down generation to generation.

You'll find no argument here.

The lengthy copyright terms theoretically came about because we were complying with European copyright law. However, that law is partially based on droit d'auteur, i.e. "moral rights." These include rights that are, in the U.S., covered by libel and slander laws. So, part of the reason for "copyright inheritance" was so that the author's descendants could make sure the author wasn't slandered after he was dead.
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MrWilson, 13 Sep 2010 @ 6:28pm

After all, the artist needs to get paid for his work. That's why we need copyright to exist in perpetuity beyond his own lifespan.

His family? Nah, f*ck 'em if we can find a legal way to wiggle out giving them a cent! If they can learn to play the guitar and get popular, we'll give 'em a contract and a chance to be exploited like every other musician out there.
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Karl (profile), 13 Sep 2010 @ 6:46pm

Re:
Ignore the colored text. I did a quick search and don't know how to take that part out.

You just have to take out the last part of the URL, the part that starts with "?q=Fifty-Six".
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Karl (profile), 13 Sep 2010 @ 6:50pm

Re:
...And, in fact, that's actually not the ruling in question. This is a ruling about returning legal documents.
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Jay (profile), 13 Sep 2010 @ 7:09pm

Re: Re:
Dangit, Google failed me!
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Anonymous Coward, 13 Sep 2010 @ 7:11pm

I think all artists should be work for hire, not this copyright nonsense that we have today.

They are hired to do a job and that is it.
What is wrong with that?

If they want to capitalize the work after they are also free to do so.
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RD, 13 Sep 2010 @ 7:22pm

Work For Hire? Not unless its explicit
If its not clearly stated that the work was "work for hire" in the contract that he signed, then its not.

PERIOD.

END OF.

There is significant precedent for this in case law, contract law, and at industries like the comics industry, for nearly 100 years. For them to roll this out is not only disingenuous, but potentially fraudulent and a massive abuse of copyright law and the court system.
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Brian, 13 Sep 2010 @ 8:29pm

not unworthy melody
Snarls of tilted copyright obscure the reasonable man. There's something Disney knows the Marleys did not? Was it advisers misinformed them or law against them? In either case, the Marley's gain 'sympathy' from me, a prize not yet property but a better gold.
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PaulT (profile), 14 Sep 2010 @ 12:03am

Re: Re: Corporatists and lawyers can't reason from first principles.
"I'm mostly of the opinion that the proper length for copyright is the duration of the author's life."

I'm not sure I'm 100% in agreement. Take Marley as an example - he died just 1 year after the release of Uprising, containing at least one of his most famous and popular songs. It would be rather unfair that the song suddenly became uncopyrighted due to his sudden death.

However, the current system is ridiculous. I personally prefer the idea of 20-30 years with the option for copyright owners to renew. I would, however, prefer that corporations are not the entity that inherit copyrights from dead artists.

"I don't think there's anything wrong with a person being able to capitalize on a profitable piece of art for their lifetime"

As Karl mentions below, copyright is not a prerequisite for this. Copyright is a monopoly. If a work enters the public domain, that doesn't mean that the original creators cannot profit, it simply means that they can't stop others from doing so. An important distinction.

It's also not the guarantee of profit that many mistake it for - even with full copyright protections, you can still make nothing if your "art" is worthless or badly sold.

"Why should it upset anyone that the artist doesn't have to work?"

Because virtually everybody else has to. There's no other profession in the world where you can just create one or two pieces of work and then live off those for the rest of your life.

Personally, I'm not upset that some artists manage to create great work and then retire from the profit. What upsets me is the sense of entitlement - that if things are failing, they should still be compensated, that they should be guaranteed a juicy retirement (for themselves and their children) at everyone else's expense because they had a few moments of inspiration.

Sure, if you manage to do that then all power to you. But, I object to the manipulation of the system, the blocking of new business models, the attempt to control both the way I enjoy my legally purchased content and the internet as a whole, just to provide a welfare system so that you don't have to work for your income.

That's the difference. Even under the current system, people get paid for a single piece of work for decades. If you haven't worked out how to manage that income properly for your retirement and your descendants, that's not my problem.

"There's certainly nothing wrong with passing down the accrued income from the original artist's work, but I don't know about extending the monopoly on exploitation of the works across generations."

Again, here, we agree. There has to be a limit - imagine if we still had to pay Shakespeare's or Homer's (or even Dickens') descendants for the use of their art! Not only would people be undeservedly be getting new income from work they had nothing to do with, but imagine how much poorer our culture would be without the many, many "derivative" stories inspired by their works.
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Richard (profile), 14 Sep 2010 @ 1:42am

Re:
ince the recordings in this case were made prior to 1978, the "work for hire" issue was governed by the 1909 Copyright Act, which has a slightly different definition of a work made for hire than the 1976 Copyright Act.

If the 1909 act applies then why don't its term, registration and renewal requirements also apply? (Implying that the copyrights would now have expired since UMG would not have bothered to renew.)

The argument that the 1909 act applies to the contract but not to the term and registration requirements seems to me to be inconsistent.
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they all want money, 14 Sep 2010 @ 3:36am

YouTube, Amazon and iTunes frustrating Notice and Takedown requests by smalller rights holders
time is money

http://www.futureofcopyright.com/index.php?page=news&id=1286
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paul, 14 Sep 2010 @ 5:40am

work for hire
If you go to p.20 of the decision there's an explanation of the work for hire rules under the 1909 act, which cover the recordings here. The presumptions are basically reversed from those in the 1978 act: generally if somebody else paid for the work to be created, it's a work for hire. This decision should have to effect on the reversion rights issues coming up with works created after 1/1/78.
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Anonymous Coward, 14 Sep 2010 @ 6:56am

Re: Re: Corporatists and lawyers can't reason from first principles.
"then what does it matter if one artist does something amazing and vanishes with the cash? Why should it upset anyone that the artist doesn't have to work?"

It does matter the whole defense for greater copyrights terms is that it is somehow unjust not to get paid over and over and over again, while this is unheard in the rest of society. Nobody expects payment more then once, but somehow a subset of people think they deserve it.

It breaks the fabric of society, causing conflicts and putting forth the idea that excluding others is a good idea.
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wallace, 14 Sep 2010 @ 7:01am

sound recordings are not work for hire
This Marley ruling may be jurisdictionally and contractually limited - without knowing what the contract said or where the ruling eminated from, its unclear how it would apply to US record companies and artists.

A U.S. Federal Court ruled that sound recordings are not work for hire (see Ballas v. Tedesco (NJ)) - that case was part of what prompted the sneak attack change in the Copyright Law, which was later reversed... making it clear that sound recordings are not part of the work for hire law.

Under general U.S. case law on what constitutes a "work for hire", the recordings made under US recording agreements do not qualify.
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Vincent Clement, 14 Sep 2010 @ 10:07am

Lot's of talk about the artist or musician this and that. However, in this case, the artist is dead. Copyright should cease. End of story. Neither the record company or his heirs should have any rights to his music.
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Anonymous Coward, 14 Sep 2010 @ 4:32pm

Re: Re:
The 1976 Act states that works in their first term when the Act goes into effect (1/1/1978)don't have to renew, since the whole renewal notion was abandoned under the 1976 Act.
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Anonymous Coward, 14 Sep 2010 @ 4:35pm

Re:
Because some people (or their heirs) don't like the terms of the contract they (or their predecessors) agreed to.

Also, sometimes it's *not* true that "if they [the contracts] say it is a work for hire, it is." Only certain categories of works can be works made for hire in the U.S. (unless you're an employee).
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Anonymous Coward, 14 Sep 2010 @ 4:37pm

Re: Work For Hire? Not unless its explicit
Um...

It's not the end of discussion if the contract was pre-1978 (which was the case here, I believe). It's also not the end of discussion if there was arguably an employer/employee relationship (which doesn't apply in this case).
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Anonymous Coward, 14 Sep 2010 @ 4:41pm

Re: sound recordings are not work for hire
That Ballas v. Tedesco isn't likely to carry a lot of weight, in my opinion, as the court did not evaluate many of the statutory work-made-for-hire categories that might apply.
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Phil Stevens (profile), 15 Sep 2010 @ 9:39am

Re: Just seems wrong
Seems totally wrong!!

Hasn't Elvis's heirs or business been profiting off his stuff FOREVER? And it was certainly prior to 1978...
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The Mad Hatter (profile), 15 Sep 2010 @ 8:03pm

Changes to Copyright
Mike,

During the Canadian Copyright Consultation I filed a submission in which I advocated making copyrights non-transferable except by inheritance, i.e. the copyright would remain with the creator, or the creator's heirs. Anyone wanting to use the copyright would have to negotiate with the creator to lease the rights, with the rights being leased for a term of no more than six years, with no automatic renewals allowed.

The point of course being to protect the creator. I was told privately that my suggestion horrified certain people, and that the same people are less than happy that I won't shut up about it.

You could consider it 'consumer protection' legislation for artists from another point of view :)

Wayne
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Brandt Hardin, 6 Jun 2011 @ 5:46pm

I think it's a shame. Bob Marley has influenced the entire world with his music, which will live on to be rediscovered by more and more generations to come. His work has affected my life and my art so much. I paid tribute to him with a surreal and psychedelic portrait inspired by his words. You can see it on my artist�s blog at http://dregstudiosart.blogspot.com/2011/05/in-memoriam-bob-marley.html
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Lita Rosario, Esq., 21 Jun 2011 @ 9:47am

Work for Hire and Copyright Termination
The decision in this case only relates to pre-1978 recordings, post 1978 recordings are still available for termination under Section 203 of the Copyright Act of 1976, although this matter is subject to litigation as well.
Lita Rosario, Esq. 202-628-1029
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