EMI Sneakily Trying To Pretend Many Of Its Artists Can't Reclaim Their Copyrights
from the but-of-course dept
We've talked plenty about the coming legal battles over "termination rights" in various works. If you're not familiar with it, under the 1976 Copyright Act, content creators have a guaranteed right to terminate any copyright assignments after 35 years. That is, if a musician assigned the copyright to a label, as is standard, they can take that copyright back after 35 years. This is not a right that an artist can give up. Even if they sign a contract saying they give up their termination rights, it doesn't matter. Those rights cannot be taken away from the artist under the law. The exception to termination rights, however, is if a work is classified as a "work made for hire." However, the definition of what qualifies as a work made for hire is very, very narrow:A “work made for hire” is--There are a lot of specific conditions there. If you're wondering how such an odd list was put together, some have suggested it was basically just who was in the room. Somewhat surprisingly, one of the main parties who apparently wasn't in the room were the major record labels. Notice that sound recordings aren't there, and you'd have to stretch the definition mightily to cover sound recordings. Of course, the labels have been freaking out about this for decades. Famously, back in 1999, Mitch Glazier, a Congressional staffer, snuck some language into a totally unrelated law about satellites to make sound recordings count as work for hire too. He allegedly did this in the middle of the night such that no one -- even the "authors" of the bill -- knew it was there until after the bill passed. This one time, the outcry (especially from musicians) was so loud, that Congress had to go back and repeal that section. Of course, by then, Glazier had jumped ship to a job at the RIAA making about half a million dollars. He's still at the RIAA where he's now the second in command. Remember that the next time anyone pretends the RIAA is about helping artists. Their number two guy tried to screw artists out of their copyrights.
(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. For the purpose of the foregoing sentence, a “supplementary work” is a work prepared for publication as a secondary adjunct to a work by another author for the purpose of introducing, concluding, illustrating, explaining, revising, commenting upon, or assisting in the use of the other work, such as forewords, afterwords, pictorial illustrations, maps, charts, tables, editorial notes, musical arrangements, answer material for tests, bibliographies, appendixes, and indexes, and an “instructional text” is a literary, pictorial, or graphic work prepared for publication and with the purpose of use in systematic instructional activities.
Of course, that hasn't stopped the efforts by the record labels to still pretend that the copyrights they hold are "works made for hire." They've been testing out a few legal theories, none of which seem very strong, but many of which will soon be tested in court. Why now? While there have been a few lawsuits over this (especially in the comic book space), the key aspect of termination rights came into effect in 1978, with that 35 year window. 35 years after 1978 is... 2013. So, a battle is shaping up.
Michael Robertson, who has been involved in a long term legal fight with EMI, is calling attention to the fact that EMI seems to be trying to just declare that music made by bands signed to its labels are works made for hire. How are they doing this? Well, just by declaring that the songs are "made for hire" on the copyright registration. You can see one example of that on a Billy Idol copyright registration embedded below. But, simply declaring it as a work made for hire on the copyright registration is totally meaningless. It doesn't mean the work hits any of the qualifications under the law.
The RIAA has been trying to claim that any albums are really a "compilation" so they qualify as a "collective work" under the law, which does create a work-for-hire situation. But there are other conditions that need to be met, and it's unclear if those have been. Plus, the claim that an album is a "collective work" is a pretty weak one all around.
Either way, many artists probably don't even recognize that their works have been designated this way (or even what it means), so Robertson has been putting together a big list, and seeking artists on that list to proactively challenge the claims, rather than waiting until the 35-year window hits. There are some pretty big names on the list he's dug up already -- including the Beatles, the Beastie Boys, the Beach Boys, The Rolling Stones, Billy Idol, Coldplay, David Bowie, Duran Duran, Frank Sinatra, Iggy Pop, Janet Jackson, John Lennon, Katy Perry, Pink Floyd, Radiohead, Smashing Pumpkins and many, many more. Robertson is hoping at least someone on the list will go legal and claim their own works:
What I'm looking for is an artist who has the courage to stand up on this issue and claim their works, laying the groundwork for them and ALL artists who share their plight to take ownership in the near future and escape this slavery. (Rather like Curt Flood did battling to get free agency for baseball players: See The Curious Case of Curt Flood which should have been called the Courage Case of Curt Flood.)Of course, some of this may get sorted out by the long list of coming lawsuits for those artists who have actually begun the process of trying to terminate the copyright assignment, starting with The Village People (though that's a weaker case, since the band itself was put together by the label). Either way, it's pretty ridiculous to see how far the labels are going to try to deny artists the ability to take back their copyrights, despite the law being pretty clear that they have that right.
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: artists, copyright, michael robertson, music, sound recordings, termination, termination rights
Companies: emi
Reader Comments
Subscribe: RSS
View by: Time | Thread
Is anyone from the RIAA wants to hire me as a spokesperson, drop me an email. Thanks!
[ link to this | view in thread ]
[ link to this | view in thread ]
Re:
[ link to this | view in thread ]
[ link to this | view in thread ]
Billy Idol as employee? Not a duck. I don't see the labels getting around it in even the non-normative real world, because anything other would threaten too much old, solid law. Groovy.
[ link to this | view in thread ]
not an EMI-specific practice
[ link to this | view in thread ]
Maybe I can track down some of those lawyers that helped disney screw their creative talent over.
[ link to this | view in thread ]
[ link to this | view in thread ]
Re:
IRS: So.. Billy Idol was your employee huh? You pay your taxes for employing him? Whats that? You aren't sure? Audit time!
[ link to this | view in thread ]
"...if the parties expressly agree in a written instrument signed by them that the work shall be considered a work made for hire."
I'm guessing none of these artists signed such a letter, but I guess the RIAA could just forge the documents....
[ link to this | view in thread ]
Re: Re:
[ link to this | view in thread ]
Re: Re:
First you can cheaply and conveniently download nearly any song you want via iTunes or Amazon.
Second, if you don't want to pay, you can hear any song you want via youtube. And the labels make money via advertising.
Now if only the labels would pay what's owed to artists. But I won't hold my breath waiting for that.
[ link to this | view in thread ]
Re: Re: Re:
[ link to this | view in thread ]
Re: Re: Re: Re:
The fact is, if the RIAA came up with an alternative to iTunes or Amazon, people wouldn't use it, simply because the RIAA has poisoned itself.
[ link to this | view in thread ]
Re:
I'm guessing none of these artists signed such a letter, but I guess the RIAA HAVE just forged the documents....
there, fixed that for ya... :)
[ link to this | view in thread ]
[ link to this | view in thread ]
Re: Re: Re: Re: Re:
People wouldn't use it, but not because of the ties to RIAA. Look at all the people who continue to purchase music from RIAA member labels.
People wouldn't use it because it would suck. The labels are incapable of providing such a service in a useful way because they are unable to let go of the very things that make it suck: DRM, too expensive, limited catalog, etc.
[ link to this | view in thread ]
if the artists are getting ripped off it is THEIR fault for signing with the label. NO QUESTION about it. They were STUPID to sign on with the label. It is THEIR fault for signing the contract - it does not MATTER if the contract changes /after/ they signed it.
[ link to this | view in thread ]
Coldplay?
[ link to this | view in thread ]
Re:
if you commenting is getting mocked it is YOUR fault for posting a comment. NO QUESTION about it. You were STUPID to post a comment. It is YOUR fault for posting a comment - it does not MATTER if your comment changed /after/ you posted it.
[ link to this | view in thread ]
Re:
if you commenting is getting mocked it is YOUR fault for posting a comment. NO QUESTION about it. You were STUPID to post a comment. It is YOUR fault for posting a comment - it does not MATTER if your comment changed /after/ you posted it.
[ link to this | view in thread ]
Re:
if you commenting is getting mocked it is YOUR fault for posting a comment. NO QUESTION about it. You were STUPID to post a comment. It is YOUR fault for posting a comment - it does not MATTER if your comment changed /after/ you posted it.
[ link to this | view in thread ]
[ link to this | view in thread ]
[ link to this | view in thread ]
[ link to this | view in thread ]
[ link to this | view in thread ]
Response to: Anonymous Coward on Mar 3rd, 2012 @ 7:37am
[ link to this | view in thread ]
Response to: Anonymous Coward on Mar 3rd, 2012 @ 7:37am
[ link to this | view in thread ]
Response to: Anonymous Coward on Mar 3rd, 2012 @ 7:37am
[ link to this | view in thread ]
Re: Response to: Anonymous Coward on Mar 3rd, 2012 @ 7:37am
[ link to this | view in thread ]
An artist that hires a session musician to play orchestral parts, THAT is a work for hire. I'm looking forward to seeing Paul McCartney get his portion of the Beatles portfolio back.
[ link to this | view in thread ]
Response to: Christopher Bingham on Mar 3rd, 2012 @ 11:49am
[ link to this | view in thread ]
Re: Re: Re: Re: Re: Re:
FTFY.
The labels were trying to come up with digital music stores for a couple years before iTunes came along. Specifically, MusicNet and Pressplay, two huge pieces of shit that were laughably restrictive and backwards-thinking:
It also bears mentioning that these services are the subject of yet another antitrust lawsuit against the labels:
Major labels to face price-fixing lawsuit (the Guardian)
[ link to this | view in thread ]
Re:
That some of the top artists of the past decade have to engage the labels in court due to their absolute refusal to relinquish ownership of property which isn't theirs to begin with is disgusting. What's more, the labels' brazen attempt to ignore the law and redefine their contractual agreements is outright insulting. And then they turn around and call people thieves... Amazing. This is how organized crime syndicates work.
[ link to this | view in thread ]
Re: Re:
[ link to this | view in thread ]
Re: Re:
[ link to this | view in thread ]
Re: Re: Re:
In the case of major motion pictures, the movie studio owns the rights. Unlike a deal between label/artist, directors, actors, composers, et al. are not expected to recoup the studios out of their own paychecks. In effect, they are hired hands being paid to perform a service. On the other hand, major labels front money to an artist which they are then expected to pay back out of their meager percentage take, while the label/distributor (often one and the same) pocket the difference. This is completely lopsided in that success is more of less dependent upon whether or not the label decides to actively promote the artist.
"Often times the audio track that is used in the film was recorded previously to appear on an album by the recording artist first an the just licensed to be used in the film. That wouldn't be work for hire either because the audio track existed prior to appearing in the film and wasn't commissioned specifically for its use in the film."
I never said that it was. It's a 'synchronization,' just like a song licensed for use in a commercial. Neither circumstance modifies the original contractual agreement between artist/label in any way.
[ link to this | view in thread ]
Re: Re: Re: Re:
And I didn't mean to imply that you said anything. I was merely adding a comment on a common scenario for clarification. I think we are in agreement on the interpretation of these scenarios.
[ link to this | view in thread ]
Re: Re: Re: Re: Re: Re: Re:
I can't remember the name of the site/service, but there was one between those label attempts and iTunes early days that was essentially a cyberlocker, but ONLY for your own mp3s. You were given a sizable chunk of space if memory serves me correctly and all you had to do was upload your own music. This was pre-broadband everywhere, so the only downside was that you were uploading using dial-up, which sucked. Lol.
That site/service ended up being sued into oblivion. I'm thinking it was something like mp3.com (but I might be wrong). Which of course, for those keeping score, was the first true shot across the bow on the part of the labels against anyone making any attempts at innovation. It was also, when looked at from a later date, the event that set cloud storage behind a decade. An event that is happening again, oddly enough, due to the labels.
For those, not you Karl, who claim "well if they weren't doing something illegal, they wouldn't change the way they run things", I say "Who says they're changing the way they run? They're not, what they are changing is they're cutting off the United States and it's citizens from using their services. A smart person would see that it's not because of wrongdoing on their part, but because when they see that they will be blamed for any misuse by their users, whose actions can't be governed and controlled 24/7/365, and have their assets seized, homes raided, etc. they realize it's better to lose a market than risk such trouble." Not that it'll do much good in the long run. Overreaching has become the new thing to do in the U.S. Why innovate when you can legislate? At the end of the day, the problems you're having will still be there, because rather than deal with the root cause of the problem (bad service and all the other things we mention... lack of selection, lack of formats, DRM, inconvenience when purchasing, etc) you're dealing with symptoms (piracy) caused by the main ailment (your own fuck-ups and inability to think beyond previously determined and set ways/methods).
[ link to this | view in thread ]
Re: Re: Re: Re: Re:
Backing in what way, financially? If a director/creator had all the funding and resources in order to create the desired project, the only benefit I can think of a studio could offer would be distribution and promotional services. The studio might stipulate that the creator grant them rights over the work in return for such support, in which case the creator would have to weigh the benefits vs risks.
Movie studios, like most businesses, put their own interests -- financial gain and control -- above all others. There are stark differences between contractual agreements with a movie studio and a record label. If a movie studio invests capital in a project, typically they're the ones paying the worker's salaries, regardless of whether or not the film is a financial success. Therefore, the people who work on such projects fall within the legal definition of a 'work for hire' -- they're being paid to do a job.
Conversely, the major labels' contract stipulates that an artist recoup the label's financial investment, an altogether different situation than the movie studios. Here the artist is not being "paid to do a job" but rather is fronted money, much like a bank, and is expected to pay it back. All the while the label is hoarding the lion's share of profits and none of their cut factors into the artist's debt. Worse still, they are especially well-endowed when it comes to *ahem* creative book-keeping.
'Work for hire' has already been defined and no amount of fancy contractual editing by the record labels can change this fact. If the artists want ownership of their works returned to them and refuse negotiations, the labels' only recourse is to attempt to strip them of ownership via a legal battle. Let this serve as a dire warning to artists out there: steer clear of signing along the dotted line of indentured servitude at all costs.
[ link to this | view in thread ]
Re: Re: Re: Re: Re: Re: Re: Re:
You are correct, it was. Specifically, that was the "my.mp3.com" service:
http://www.wired.com/techbiz/media/news/2000/04/35933
I'm particularly amused by this quote from ASCAP's Dean Kay:
"This ruling means that all entitled parties will participate in income generated by Net uses of music in business settings," Kay wrote in an email. "That insures the professional creation and delivery of new music, which is definitely in the consumer's best interest."
Yeah, how'd that work out?
I remember this vividly, because I (like thousands of other artists) used MP3.com to distribute my own music. I think I still have one of their tote bags kicking around somewhere.
Admittedly, their distribution model sucked. They would sell "D.A.M. CD's" that were just burned from 128K MP3 files, so the sound quality was terrible; plus the packaging was all the same (2-panel CD cover & tray), you couldn't do extras, there was no tiered pricing scheme...
Still, if it had been allowed to survive to modern times, it would have been a godsend to indie musicians. Yet another example of how the major labels' quashing of technology hurts all musicians.
[ link to this | view in thread ]
Re: Re: Re: Re: Re: Re:
[ link to this | view in thread ]
Re: Re: Re:
If you sit through the end credits (as I do), you'll see a notice saying "(Insert studio name here) is the author for purposes of copyright" or some such similar phrase.
[ link to this | view in thread ]
I'm surprised nobody mentioned this ...
They may be opening up a whole new can of worms.
[ link to this | view in thread ]
Re: Re: Re: Re:
[ link to this | view in thread ]
Re: Re: Re: Re: Re:
However by the same definition, if a director or writer had an idea for a film and pitched it to a studio to fund making it and promote it afterwards, then the director or writer would be the creator and thus termination rights would exist.
[ link to this | view in thread ]