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

from the this-could-be-big dept

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.

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

Neil Gaiman And Todd McFarlane Fight Over Whose Derivative Character Is Owned By Whom

from the angels-in-thong-bikinis-in-the-courtroom dept

ChurchHatesTucker sends in the Associated Press report about the ongoing legal fight between writers/comic artists Todd McFarlane and Neil Gaiman, over who owns what rights to what characters. The CityPages blog actually has a version of the story with a lot more details. Frankly, the whole thing seems a little silly. McFarlane created Spawn, and later brought on guest writers. Gaiman did issue #9. Here's where it gets tricky. McFarlane (and two others) had left Marvel to start their own comic company, Image Comics, which published Spawn. Having been upset about how Marvel set up deals as "work-for-hire" (such that Marvel kept the copyright on any works done by artists/writers), Image was designed to be more creator-friendly, allowing them to retain their own copyrights.

All that sounds good, right? Except... what happens when you're talking about multiple artists all dipping into the same world? That's what caused the mess we're in now. Gaiman's Spawn introduced some new characters, which he claimed the copyright over. But, of course, those characters come out of the Spawn world, and thus, you could make the case, are clearly derivative of McFarlane's own characters. Potentially in an attempt to get around having to pay Gaiman royalties (this is the part that's very much in dispute) a later issue of Spawn introduced some new characters, which have some similarities to Gaiman's characters. And thus, the royalty fight is on. It sounds like there's some personal issues between Gaiman and McFarlane underlining all of this as well.

Honestly, the whole thing seems a bit silly, really. Though, it's a situation created by today's ridiculous level of copyright protection. Work-for-hire deals certainly have their own trouble, but when you give out separate copyrights to lots of different people involved in a project, you also end up with a bit of a thicket, which appears to be the problem McFarlane faced. In the end, though, Gaiman created a derivative work for the Spawn world and should be happy that others built on his works to do more.

In fact, to make the case against Gaiman, I'd like to quote one Neil Gaiman a couple years ago, talking about a similar lawsuit involving derivative works based on Harry Potter:

My main reaction is, having read as much as I can about it, given the copyright grey zone it seems to exist in, is a "Well, if it was me, I'd probably be flattered".... I can't imagine myself trying to stop any of the unauthorised books that have come out about me or about things I've created over the years, and where possible I've tried to help, and even when I haven't liked them I've shrugged and let it go.... My heart is on the side of the people doing the unauthorised books, probably because the first two books I did were unauthorised, and one of them, Ghastly Beyond Belief, would have been incredibly vulnerable had anyone wanted to sue Kim Newman and me on the grounds that what we did, in a book of quotations that people might not have wanted to find themselves in, went beyond Fair Use.

Seems like perhaps Neil Gaiman involved in this lawsuit should talk to that Neil Gaiman.

Though, as CHT notes in his submission (quoting from the AP report), at least this trial gave us: "Images of the characters in dispute, including the angels in thong bikinis, were projected in Crabb's courtroom throughout the daylong hearing." So maybe it's not all bad.

Filed Under: copyright, derivative works, neil gaiman, spawn, todd mcfarlane, works for hire