Dear Musicians: The RIAA Is About To Totally Screw You Over (Again!)
from the watch-for-it... dept
It's been two years since we first warned of the pending fight concerning musicians asserting their copyright termination rights. As you hopefully know by now, copyright law includes a "termination right," which cannot be contractually given up, which allows the original content creator to "reclaim" the copyright on their works 35 years after it was created. The only real exception is in cases where the work qualifies as "work for hire." I'm actually not a huge fan of termination rights in the first place for a variety of reasons, but the fact is that they're there... and they scare the entertainment industry silly.The big legal fights so far have mostly been about the comic book industry, with the heirs of Superman's creators having won back some rights to Superman -- while Jack Kirby's heirs failed to win back the rights to The Incredible Hulk and X-Men. Kirby's family just appealed and there are still additional disputes around the Superman stuff.
However, the real showdown is about the music industry. The NY Times has an article about the impending battle, which has a variety of interesting tidbits, but none more ridiculous than the RIAA officially making it clear that it intends to totally screw over musicians. As we made clear two years ago when we wrote about this, the RIAA was going to come out fighting to try to block what the law clearly allows, and will do everything it can to screw over artists and keep them from regaining their own copyrights.
“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.First, this may be the first time the mainstream media has accurately pointed out that the RIAA represents the "interests of the record labels" rather than the interests of the music industry or musicians. As is clear in this case, the RIAA's interests are diametrically opposed to the interests of artists, and the fact that Marks has the gall to flat out say that termination rights don't apply to most sound recordings is so intellectually dishonest.
The RIAA knows full well that termination rights absolutely do apply to most sound recordings. To be fair, this is mostly an accident of history. As was detailed in an excellent IP Colloquium episode last summer all about termination rights, what got covered and what didn't basically depended on who was in the room and who was more aggressive in their lobbying. Nine "work-for-hire" exceptions were put into the law. It doesn't make much sense which ones made it and which didn't, but that's lobbying for you.
However, the reason we know that the RIAA is fully aware of the fact that copyright termination does apply to most sound recordings is because a dozen years ago, recognizing that this was going to become an issue, the RIAA famously had a small time Congressional staffer by the name of Mitch Glazier sneak four innocuous looking words in the middle of a totally unrelated bill to quietly and retroactively have sound recordings declared "works for hire." This literally happened overnight with no elected officials who were voting on the bill being made aware of it.
Once that became public, artists (quite reasonably) freaked out and went very, very public about how the RIAA was totally screwing them over. It's one of the few times in history when Congress actually went against the RIAA, removing the language soon after it was approved. Of course, the guy who slipped the language in, Mitch Glazier, came out of this fine. Just three months after putting in that language, he was hired by the RIAA at a $500,000 per year salary, and he's just been promoted to the number two spot at the RIAA.
If you ever needed any more evidence that the RIAA is entirely anti-artist, this is it. It's put the guy who tried to take away their right to regain copyrights in the number 2 spot just weeks before out and out declaring that the organization simply doesn't believe sound recordings qualify for termination rights.
So, since they know damn well that sound recordings do qualify for termination rights, how are they going to claim otherwise? They may (as the NY Times article suggests) try to rely on last year's ruling concerning Bob Marley's recordings, in which they were declared "work for hire" and his family was unable to reclaim the copyright. But that's a different story, as those recordings happened prior to the rules of the 1976 Copyright Act, so the ruling really doesn't apply.
Instead, my bet is they're going to lean heavily on a Second Circuit Appeals Court ruling from last year, which claimed that an album is a single compilation for the purposes of copyright law. That matters, because while "sound recordings" are not covered as a "work for hire," "compilations" are. Of course, the obvious intent of including "compilations" was based on the realization that if multiple people contribute pieces to a larger whole compilation, separating out those rights later under termination laws would be freakishly impossible. Thus it was just easier to label the entire compilation as held by the producer. But a single album by a single artist clearly is not a compilation in that sense, despite the RIAA's claim above.
Other than that, the only way the RIAA can make a work for hire claim stick is to say that musicians were employees who created the music "within the scope of his or her employment." That, obviously, is completely laughable, since the labels don't hire musicians, nor do they pay them salaries. In fact, while they give them "advances," those are merely a form of loan that the artists have to pay back out of their own earnings. So the labels aren't even paying for the music creation.
Either way, it's pretty stunning that the RIAA has so blatantly declared war on artists. I'm somewhat surprised that more musicians aren't speaking out about this, but it's going to happen. No wonder the RIAA is so desperate to get things like PROTECT IP passed now, before this next battle comes to fruition. Once you have a bunch of big name musicians going very public about how the RIAA is screwing them over, it's going to be increasingly difficult for the RIAA to keep up the facade about how it's representing the interests of musicians while it's actively and vocally trying to totally screw them over.
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Filed Under: copyright, copyright termination, mitch glazier, music, termination, termination rights
Companies: riaa
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I do have a problem with judges finding that artists were mere performing works for hire without any contract stating as such.
If the contract says something about the issue, then the ruling should go that way.
But if the contract says nothing about the issue, then it should be assumed that the artists who wrote and played the songs were not performing works for hire.
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It certainly doesn't say so explicitly.
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But that's not the end of the issue.
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I've seen a few recording contracts, and not one of them said the recordings were works made for hire.
They required the artists to assign the copyright to the label - but that's not the same thing at all.
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I suspect this is the case with most major-label contracts at any rate, but maybe this wasn't as common back in the late 70s early 80s right after the new copyright act went into effect.
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http://www.techdirt.com/articles/20110816/17194815553/breaking-benjamin-dispute-lays-bare-d irty-laundry-behind-scenes-record-label-deals.shtml#c61
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It's probably just bad reporting.
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But copyright should have TOTALLY expired by 35 years!
As said elsewhere, if carpenters and masons had the "right" to claim perpetual income for building the houses of RIAA executives, I'd call that fair. Since they don't, I have to side with the RIAA on the "for hire" part, while still reviling them for not distributing the revenue fairly for all those years.
But 35 years on top of the unilaterally changed deal that existed previously: no, copyright is NOT perpetual, so I can't side with musicians either.
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Re: But copyright should have TOTALLY expired by 35 years!
Copyright life span should be limited to up to 10 years and should belong to the creators. Full stop. Problem solved.
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Re: But copyright should have TOTALLY expired by 35 years!
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Re: But copyright should have TOTALLY expired by 35 years!
As for the musicians being employees? So, does that mean they get a legal wage/salary/commission? Despite whatever agreement an employer makes with an employee for the employee's wages, an employee is entitled to certain minimum wages set by the federal government. If they're employees, do they get worker's compensation, and unemployment insurance? Will the RIAA labels now have to pay back-dated tax on their "employees" salaries?
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Re: But copyright should have TOTALLY expired by 35 years!
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I'll stay true to my ideals and I'll keep donating to the artists (and going to shows) and not buying CDs anymore =)
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Just so you know I became a PUNKER in 1976 and fully stopped buying anything from the huge labels.For a few years before that I mostly bought used vivnyl at the Boston Vinyl Stores.I hate the RIAA and so do most of my musician friends.Every band I have been in (still playing as big meat hammer or the lynn rebels) will have nothing to do with big labels and/or RIAA.
They can both fuck themselves.They love to complain about downloads and forever they have both ripped off Artists (some were my older friends) and us the Consumers.
FUCK OFF AND DIE !!!!
Anyone who buys or supports Artists who sign with RIAA/Big Labels are a traitor to us all.Stay the hell away from these leeches and do us a favor by buying your product as a used physical CD.
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The RIAA Is About To Totally Screw You Over
"...the RIAA officially making it clear that it intends to totally screw over musicians.
"...the RIAA ... will do everything it can to screw over artists..."
"...how the RIAA was totally screwing them over.
"...a bunch of big name musicians going very public about how the RIAA is screwing them over...",
"...while it's actively and vocally trying to totally screw them over."
Wait. Is this an article about the RIAA trying to screw over artists?
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Re: The RIAA Is About To Totally Screw You Over
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Re: Re: The RIAA Is About To Totally Screw You Over
You cannot contractually give up your termination right. Try harder next time.
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Re: The RIAA Is About To Totally Screw You Over
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In the long run, it will likely hurt them far more if they actually WIN this particular battle. Let the artists who so far have perpetually and consistently turned the other cheek see what "there" industry REALLY thinks of them. Let them see what their government really thinks of them.
Then lets see how much support they get from artists as the try to push their ACTAs and their PRO-IPs. A loss here doesn't set them back any, doesn't even stop them really, it merely slows their progress a bit. A win here might actually create enough backlash to at least stop their next attack in it's tracks, and maybe even enough momentum to push for real reforms.
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So what.
I'm not a pirate and I'm sick of these "artists" treating me like one. Yes, the *artist* is just as responsible for doing nothing to stop the DMCA, as just one example, as it stripped us *buying customers* of our rights.
May the RIAA succeed in this.
Then, maybe artists will pull their heads out of the sand and help us get these laws redacted.
All of them.
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Re: So what.
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Re: So what.
The FAC members even went so far as to back 3 strikes legislation that they KNEW would fail.
After watching them backpedal and support the labels in their
efforts to get 3 strikes implemented, I am content to sit silently and let the labels take the last scraps they can from the 'old guard'. I hope they enjoy their dose of Karma.
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And why does the FAMILY of the ORIGINAL artist get any claims? That's another thing that makse this stupid. They didn't do the work, why do they get paid.
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As the band/artist effectively pay the labels for their services, the labels are the ones who work for hire.
Wish that was how it was viewed.
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Response to: Lord Binky on Aug 16th, 2011 @ 12:07pm
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I got this one guys!
Your welcome guys!
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Re: I got this one guys!
/troll
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*FLASH* KAA KAA KAA KAA KAA!
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Can't wait to see how the RIAA would try to weasel their way out of that one. The IRS is famous for seizing the assets of companies that don't pay, whether they show a profit or not, when it comes time to pay taxes.
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That is actually not clear at all. It's a very difficult question to answer and there's not a lot of case law on the topic (or, at least, there wasn't when I last researched the topic a few years ago).
Most recording contracts say that the works are works made for hire. The question is whether they fall into one of the statutory word made for hire categories.
There's a legitimate argument that recorded songs are contributions to a collective work (i.e., an album), or even that individual musical performances (e.g., vocal work) is a contribution to a collective work (a song).
I'm not sure that such an argument would eventually win the day in a court case, but acting like the issue is well-settled and the lables know they are wrong is...well, it shows your ignorance and/or bias.
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You and your ilk are parasites in every sense of the word, pure and simple.
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If you want to argue with someone else about something someone else said, I'm not interested.
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That doesn't make the reader the problem.
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It's both. The fact that Mike wrote something is prima facie evidence that it's both ignorant and biased.
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You keep saying this, yet I've never seen this in any of the (few) contracts I've seen, and I've never even heard of it being part of a standard recording contract.
You do realize that assigning the copyright to the label does not make it a work for hire, right?
Here is the relevant part of the law:
In other words, if the musician isn't an actual "employee" (and they aren't - because the labels would have to pay them as one), the work must fall within one of those categories, and must be explicitly designated as a "work made for hire" (and not, for example, a work whose copyright is simply assigned to the label).
For the "collective work" section to apply, the work must have been "specially ordered or commissioned" solely for that collective work:
So, if you're a studio musician that was hired for backup vocals on a Steely Dan album, you probably never held the copyright in the first place; but if, like most artists on the major labels' rosters, you are a recording artist and/or songwriter, you automatically have termination rights.
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However, I know that standard forms in form books often (I would say "usually" but I'll just be conservative here) include such provisions.
See Ronald Farber, Negotiating Contracts in the Entertainment Industry, form 160-1, para. 9.01 (“Each Master made under this agreement or during its term…will be considered a “work made for hire” for XYZ [the record company]; if any such Master is determine not to be such a “work,” it will be deemed transferred to XYZ by this agreement, together with all rights and title in and to it.”)
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http://www.techdirt.com/articles/20110816/17194815553/breaking-benjamin-dispute-lays-bare-di rty-laundry-behind-scenes-record-label-deals.shtml#c61
Paragraph 6(a) of the recording agreement
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PS: I find contemporary union tactics reprehensible, so I'm shocked I'm even thinking about this.
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Title of this TD article is highly misleading
The correct word would be: Still.
"Again" would imply that the RIAA had at some point ceased screwing musicians, and the screwing was now anticipated to resume -- thus the word "again".
Since the RIAA has never ceased screwing musicians, the correct word would be "still" and "continue". Dear musicians, the RIAA is about to continue to still totally screw you over.
FTFY. :-)
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Re: Title of this TD article is highly misleading
The word "again" is appropriate if the RIAA is going to continue screwing musicians the way it has been but is now adding an additional new method of screwing musicians. That new method of screwing musicians in addition to the current method would be the "again" part.
Sorry about that.
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Brain Asplodes!
When content sharing is involved, even if it's legal - it's wrong. There's such a thing as right and wrong, don't you know?
However, if artist contracts are involved, even it it's wrong - it's legal. There's not really such a thing as right and wrong, It's just business, don't you know?
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One word
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Yes and?
Yeah, and I believe in the Tooth Fairy. I don't care what you believe in or want. Get back to the fossil exhibit
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Stunning?
In other news: the Pope is Catholic.
Seriously, you're actually surprised by this? I'd be shocked if they didn't declare war on artists. That's the only way major labels make money.
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Re: Stunning?
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That Explains It
That explains why the digitally remastered CD of Bob Seger's "Stranger In Town", which was track-for-track identical to the 1978 album (and previous CD editions), said "This compilation (C)2001" ~ they've been preparing for this for years it seems!
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Re: That Explains It
72435-35232-2-0
Original Album art © 1978 Capitol Records, Inc.
This compilation (p) 1978, 2001 Capitol Records, Inc. © 2001 Capitol Records, Inc.
Remastered June 2001
Original sound recordings first published in 1978
http://www.discogs.com/Bob-Seger-The-Silver-Bullet-Band-Stranger-In-Town/release/707941
T his battle is going to be so entertaining.
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This is an issue that, to me, is very interesting, and would be really fun (from an attorney's perspective) to litigate.
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In the music industry the record company demands all of the copy rights and then the artists have to go back and sue in order to regain ownership of their own songs, after their contractual obligations have been filled.
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credit where credit is due
I fell across your article and noticed you took credit for first warning people about this whole reversion issue. Actually, Susan Butler and Billboard preceded you by a few years. Credit should go where credit is due.
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Re: credit where credit is due
This has been a part of copyright law since the 1976 Copyright Act went into effect on January 1, 1978.
Nobody should be taking credit on warning people.
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Intellectually?
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re article
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