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Music Copyright War Looming

Soulskill posted more than 3 years ago | from the your-uppance-will-come dept.

Music 243

quarterbuck writes with this excerpt from the NY Times: "When copyright law was revised in the mid-1970s, musicians, like creators of other works of art, were granted 'termination rights,' which allow them to regain control of their work after 35 years, so long as they apply at least two years in advance. Recordings from 1978 are the first to fall under the purview of the law, but in a matter of months, hits from 1979, like 'The Long Run' by the Eagles and 'Bad Girls' by Donna Summer, will be in the same situation. ... '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."

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It depends on contracts (2, Interesting)

zget (2395308) | more than 3 years ago | (#37098478)

Unless the artists self-financed it and didn't make contracts with record labels, it basically is work for hire.

Lets take game series as examples - even if your studio created the game and the franchise, the IP rights to the name, characters etc belong to the publisher as they financed it and that was the deal made with the studio. Unless they make a deal with the publisher, they also cannot just leave and continue using that same name under another publisher. On the other hand, the publisher has the right to use the name even if they hire a new studio the make it. This is the case with Call of Duty series too. It's basically work for hire, and it's a decision creators make when thinking if they could finance it on their own or if they need a publisher to finance the initial creating part. Since publisher takes a risk, they also get to own the work done.

It's the same thing when you work for a software company as coder. You don't own the product or the code you made, as you were hired to do it for the company. If you want to keep it all to yourself (and also get larger rewards), you need to finance and handle all parts of it yourself.

Re:It depends on contracts (-1)

Anonymous Coward | more than 3 years ago | (#37098546)

your mother was work for hire. and she was good at it too. how is her back doing?

Totally OT Post, might be going crazy (1)

glavenoid (636808) | more than 3 years ago | (#37099064)

This is a totally off-topic meta-post, but I'm tagging on a top comment anyway...

Is it just my browser, or is the ./ layout radically different all of a sudden? I seem to have lost the sidebars and slashboxes on the front page and the comments are spanning the width of the screen instead of the normal layout. I haven't changed anything myself far as I can tell.

Re:It depends on contracts (3, Interesting)

WrongSizeGlass (838941) | more than 3 years ago | (#37098552)

I think it all depends on how the contracts with the bands/musicians were worded. If they don't read as "works for hire" contracts, or the record companies only have distribution deals, then the RIAA bastards may be out of luck.

Re:It depends on contracts (5, Informative)

Zeinfeld (263942) | more than 3 years ago | (#37098662)

The typical recording contract of that era was expressly designed to avoid being categorized as 'work for hire' as it would mean a shorter copyright term. The recording contracts were also designed to bilk the artists out of their royalties by requiring them to bear a very long list of costs. Work for hire has a very specific meaning in copyright law. The labels can't redefine the meaning retrospectively. Or at least they can't unless they can bribe Congress to do it for them.

Re:It depends on contracts (3, Insightful)

The Grim Reefer2 (1195989) | more than 3 years ago | (#37098816)

The labels can't redefine the meaning retrospectively. Or at least they can't unless they can bribe Congress to do it for them.

Oh, OK, so they can do it then.

Re:It depends on contracts (1)

Moryath (553296) | more than 3 years ago | (#37098858)

No kidding. How long till the bags of money start flowing into congressional hands quietly, again?

This is the Mickey Mouse Copyright Extension Act all over again.

Re:It depends on contracts (1)

The Grim Reefer2 (1195989) | more than 3 years ago | (#37099172)

No kidding. How long till the bags of money start flowing into congressional hands quietly, again?

This is the Mickey Mouse Copyright Extension Act all over again.

Well of course congress must help the poor recording industry. If they don't do this how will the RIAA be able to pay congress... I mean donate to their campaign fund... I mean afford to protect the artists. Yeah, that's it. They must have this so that they can afford to protect artists. And by extension the economy and the American way of life. In fact doing this is the patriotic duty of congress. ;-)

Re:It depends on contracts (1)

AlamedaStone (114462) | more than 3 years ago | (#37099498)

No kidding. How long till the bags of money start flowing into congressional hands quietly, again?

This is the Mickey Mouse Copyright Extension Act all over again.

Does that imply the money ever stopped? The only difference is now they don't have to tell you it's them slipping singles into Harry Reid's halter top. Money is speech after all. But it's silent speech. Like carbon monoxide.

even if they get there way in Congress the IRS (2)

Joe_Dragon (2206452) | more than 3 years ago | (#37099018)

even if they get there way in Congress the IRS will be on there ass over the taxes due for work for hire jobs.

Ex post facto (1)

ZombieBraintrust (1685608) | more than 3 years ago | (#37099650)

Warning I'm not a lawyer. Ex post facto laws are expressly forbidden by the United States Constitution. They can't change the law retroactivly in a way that takes property from one group and gives it to another. With copyright extentions they get around it because the public domain isn't a person with rights.

Re:It depends on contracts (4, Insightful)

sesshomaru (173381) | more than 3 years ago | (#37098570)

"Not only have recording artists traditionally paid for the making of their records themselves, with advances from the record companies that are then charged against royalties, they are also exempted from both the obligations and benefits an employee typically expects. "

In other words, the recording industry, when it is harmful to them, says, "They are independent artists" including loaning them money to make a recording that they then have to repay. However, when it's in their interest for the artists to be employees, they say, "Hey, it's work for hire, we own it."

This is why the people who make up the recording industry are thought to be the loveliest people on Earth.

Re:It depends on contracts (3, Informative)

Rhywden (1940872) | more than 3 years ago | (#37098668)

Fun part is that in Germany, such an argument would bring immediate retribution by the state - since, if they're actually employees, the companies have to copay for such things like pensions or health insurance.
Thus they'd leverage huge fines against the companies making that argument since we all know that musicians rarely see a significant dime out of their contracts - which is the reason why they're doing tours where they also sell t-shirts to make money.

Re:It depends on contracts (3, Funny)

AlamedaStone (114462) | more than 3 years ago | (#37099730)

Fun part is that in Germany, such an argument would bring immediate retribution by the state - since, if they're actually employees, the companies have to copay for such things like pensions or health insurance.

Thus they'd leverage huge fines against the companies making that argument since we all know that musicians rarely see a significant dime out of their contracts - which is the reason why they're doing tours where they also sell t-shirts to make money.

You Germans are so backwards. Here in America, it is every citizen's right not to have a pension or healthcare.

Re:It depends on contracts (2)

LordKronos (470910) | more than 3 years ago | (#37098586)

Except the music studios typically DON'T finance it. From pretty much everything I've every read, they usually give the artist an advance to cover costs and then recoup that money from the sales. That's one of the many reason a lot of artists hardly see any money come their way from record sales.

Re:It depends on contracts (1)

elrous0 (869638) | more than 3 years ago | (#37098862)

The studios also learned a neat trick a long time ago. You dazzle your young artists with big houses and lots of bling (most, if not all of it, owned by the studio of course) that they get to "keep" just as long as they're still making you money. When they burn out, you just kick them to the curb and pass on the mansion, cars, and jewelry to the next sucker. Fans see these rap stars flashing all this shiny crap in videos and living in fancy digs. But they never hear about what happens after they're not making money anymore and hammer time has turned into eviction time.

Re:It depends on contracts (0)

Anonymous Coward | more than 3 years ago | (#37099180)

The studios also learned a neat trick a long time ago. You dazzle your young artists with big houses and lots of bling (most, if not all of it, owned by the studio of course) that they get to "keep" just as long as they're still making you money. When they burn out, you just kick them to the curb and pass on the mansion, cars, and jewelry to the next sucker.

The bizarre scenario you describe was apparently something you thought up while you were high. This has never happened.

Re:It depends on contracts (1)

Oakey (311319) | more than 3 years ago | (#37099534)

Erm, it did, I'm pretty sure Suge Knight screwed Tupac exactly like this.

Re:It depends on contracts (5, Informative)

Ruke (857276) | more than 3 years ago | (#37098610)

Not true. The typical record label deal is essentially a loan: artists are given a lump sum of money up front, and then are under contract to produce and sell music. The record labels then take a cut of the sales, paying off the orginal forwarded money over time. From TFA:

Independent copyright experts, however, find that argument unconvincing. Not only have recording artists traditionally paid for the making of their records themselves, with advances from the record companies that are then charged against royalties, they are also exempted from both the obligations and benefits an employee typically expects.

“This is a situation where you have to use your own common sense,” said June M. Besek, executive director of the Kernochan Center for Law, Media and the Arts at the Columbia University School of Law. “Where do they work? Do you pay Social Security for them? Do you withdraw taxes from a paycheck? Under those kinds of definitions it seems pretty clear that your standard kind of recording artist from the ’70s or ’80s is not an employee but an independent contractor.”

Re:It depends on contracts (5, Insightful)

Todd Knarr (15451) | more than 3 years ago | (#37098630)

Two things though. First, as a software developer your contract with your employer states explicitly that the copyright on code you produce rests with your employer, not you. If it didn't, the default rules are that you own the code, not the company. Second. software developers like that are also W2 employees, not independent contractors. And that makes a difference. There's been several run-ins between companies and the IRS about employee status, and the labels may be walking into a minefield. If the artists really are employees, not independent contractors, then the labels are responsible for payroll tax withholding, unemployment insurance payments, employer's portion of SSI and Medicare taxes, etc. etc..

Re:It depends on contracts (2, Informative)

Anonymous Coward | more than 3 years ago | (#37098642)

*Achievement unlocked: Didn't read the article! +25 Slashpoints!*

FTA:

Independent copyright experts, however, find that argument unconvincing. Not only have recording artists traditionally paid for the making of their records themselves, with advances from the record companies that are then charged against royalties, they are also exempted from both the obligations and benefits an employee typically expects.

“This is a situation where you have to use your own common sense,” said June M. Besek, executive director of the Kernochan Center for Law, Media and the Arts at the Columbia University School of Law. “Where do they work? Do you pay Social Security for them? Do you withdraw taxes from a paycheck? Under those kinds of definitions it seems pretty clear that your standard kind of recording artist from the ’70s or ’80s is not an employee but an independent contractor.”

Re:It depends on contracts (3, Insightful)

PuckSR (1073464) | more than 3 years ago | (#37098680)

Not exactly. That analogy is too simple.

A coder is hired to write code for a project. A musician is 'hired' to record a work that they created. The work exists independent of the record company. The same cannot be said of the coder. The coder does not write code and then get hired to put his code in the game. If the code existed before the formal business relationship, then the code is licensed from the coder.

This is actually a point that frequently comes up. Someone works on a project while working for a company. The company claims they have rights to the project because they were employing the individual at the time. The individual will typically argue that the work was not part of their "work for hire" and the truth of that claim is debated by the courts.

The RIAA argument makes sense in certain respects. Take "The Monkeys" for example and their hit song "Daydream Believer". It was written by John Stewart under contract to write songs. It was performed by "The Monkeys" as part of an employment contract to make a TV show. No debate, very clear cut. However, it gets more confusing when we have a song that was written and performed before the contract even existed. In that case, it is pretty clear that the creation of that work was not "work for hire" and therefore the record company is really licensing the music(though they may have had the artist agree to something else). Lots of artistic works fall into the cracks somewhere in the middle. This will be very interesting.

Re:It depends on contracts (1)

Anonymous Coward | more than 3 years ago | (#37098742)

Unless the artists self-financed it and didn't make contracts with record labels, it basically is work for hire.

And this is completely backwards from how it should be - the artists should be hiring the labels to record/distribute/promote the creative works, not the other way around!

Now, the Pope getting Michelangelo to paint the ceiling of the Sistine Chapel - now THAT's what I call a "work for hire!"

Re:It depends on contracts (1)

MightyMartian (840721) | more than 3 years ago | (#37098838)

There are plenty of artists who negotiated the rights to their masters; effectively they own the recordings. Ray Charles was one, and I believe David Bowie also owns the masters to all but his early material.

Re:It depends on contracts (1)

gurps_npc (621217) | more than 3 years ago | (#37098888)

Wrong. You misunderstand the specifics of the case.

The problem is that all the original contracts assumed that the copyright would expire after a reasonable period of time. As such, when the authors sold the rights, they sold the rights until the end of the THEN EXISTING COPYRIGHT laws.

When congress sunk to evil and stupidly extended the copyright laws, some of the congressmen had enough morals to put in restrictions. That is, they refused to extend the copyrights to give the publishers additional rights, as the entire argument was to give the artists more rights. As such, the law did not just extend their contracts forever.

The whole point of this article is that congress specifically put in restrictions to help the original artists. Effectively, congress tried to write the law so that people that had previously sold the copyrights had in fact sold only rights until the original copyright had expired. It was in effect an attempt to stop exactly what you are talking about.

And yes, Congress CAN simply do that. They can re-write any contract they want. They can pass a law right now saying all game copyrights are now invalid and people may copy them to there hearts' content. They won't, but they have the legal power to do that.

The question is not whether it was 'work for hire'. That is a moronic argument, that the companies will try to focus the courts about. Instead the question is did Congress write the law well, or did they do a poor job of it. If they did right, then the artist recover the copyrights, as Congress intended.

If they did it poorly, then the corporations will have pulled a quick one, stealing the extended copyrights from the people Congress tried to give it to.

Re:It depends on contracts (1)

cfulmer (3166) | more than 3 years ago | (#37099266)

It doesn't matter. Whether a work is a "work made for hire" is a question of law. It either has to (1) be made in the scope of an employee's employment, or (2) be "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 Your game example is likely a part of an "audiovisual work" so as long as all the contracts say it's a "work made for hire", it'll be a "work made for hire." Music (both the sounds recording and the underlying composition) are different matters -- I don't see how (2) could stand. (1) might, but it's unlikely -- rock stars are generally not employees of the studios. The studios' best argument is that the works are "Joint Works" -- it may be the musicians playing, but it was the studios' recording engineers and other people who made it sound like it did on the recording. So, while the band might be able to take back its copyright assignment to the studio, the band would only end up being a joint owner with the studio. The net result would be that both the studio AND the band could sell the music. But, that gets more complicated when you realize that there's another copyright in the underlying notes and lyrics -- if the author of THOSE took his copyright back, then, perhaps, nobody would own enough rights to publish the CD.

Re:It depends on contracts (1)

i_ate_god (899684) | more than 3 years ago | (#37099288)

This is true. Except recording contracts are setup to force the artist to repay the costs of production, so presumably, they are not works for hire since ultimately, the artist paid for the production of the workand thus "self-financed"

Re:It depends on contracts (2)

Rob the Bold (788862) | more than 3 years ago | (#37099694)

Unless the artists self-financed it and didn't make contracts with record labels, it basically is work for hire.

First of all, wouldn't the law trump a contract?

And secondly, isn't it strange to call it "work for hire" when the recording costs like studio time, engineering, mastering, distribution and promotion are taken off the top before the artists ever see a dime? Is it "work for hire" if you have to sign your own paycheck?

Don't worry, the RIAA owns Congress too (5, Insightful)

elrous0 (869638) | more than 3 years ago | (#37098498)

Yeah, they were way more expensive than those master recordings. But if you have the means, I highly recommend it.

Expect "clarifications" to this law any day now--just like Congress constantly revises [wikipedia.org] copyright law to make sure that nothing past 1923 is EVER out of copyright (after generous campaign contributions from the good people at Disney, of course).

And if you're thinking there is anything that you as a citizen can do, don't you worry your pretty little head about it. With both major parties supporting pro-industry IP legislation, there is really nothing you can do about it. But if you want a nice form letter to frame, you can go ahead and waste a stamp and write to your Congressman.

Re:Don't worry, the RIAA owns Congress too (0)

Anonymous Coward | more than 3 years ago | (#37098538)

Sadly, this is pretty much the case. Two words for musicians: go indie!

Re:Don't worry, the RIAA owns Congress too (1)

tepples (727027) | more than 3 years ago | (#37098688)

But if an indie musician writes his own songs, how can he be sure that he didn't accidentally copy a substantial part of a song written by a songwriter in the mainstream music industry?

Re:Don't worry, the RIAA owns Congress too (0)

Anonymous Coward | more than 3 years ago | (#37099134)

Don't worry, they'll sue him anyway.

Maybe, maybe not. (4, Insightful)

khasim (1285) | more than 3 years ago | (#37098624)

Remember, the people in Congress are always up for re-election (unless retiring).

Now if a few groups like The Eagles decide to make this a public issue, then their fans may be persuaded to vote in a different person who is more agreeable to The Eagles' argument.

It's difficult for the various corporate interests to simultaneously claim to be pro-artist-rights with regard to "intellectual property" and also claim that the artist was nothing more than a day-laborer with no rights to the finished product.

Re:Maybe, maybe not. (2)

Merk42 (1906718) | more than 3 years ago | (#37098856)

Remember, the people in Congress are always up for re-election (unless retiring).

Now if a few groups like The Eagles decide to make this a public issue, then their fans may be persuaded to vote in a different person who is more agreeable to The Eagles' argument.

It's difficult for the various corporate interests to simultaneously claim to be pro-artist-rights with regard to "intellectual property" and also claim that the artist was nothing more than a day-laborer with no rights to the finished product.

And that replacement to the Congressman will be bought and paid for once entering office.

Re:Maybe, maybe not. (1)

mbone (558574) | more than 3 years ago | (#37098892)

It's difficult for the various corporate interests to simultaneously claim to be pro-artist-rights with regard to "intellectual property" and also claim that the artist was nothing more than a day-laborer with no rights to the finished product.

If they can lie about the first, why should it be difficult to lie about the second ?

Re:Maybe, maybe not. (1)

Schemat1c (464768) | more than 3 years ago | (#37098964)

Remember, the people in Congress are always up for re-election (unless retiring).

Now if a few groups like The Eagles decide to make this a public issue, then their fans may be persuaded to vote in a different person who is more agreeable to The Eagles' argument.

It is well known that the candidate who drops the most money on his/her campaign is the one who 'wins'. There is a lot of money out there for politicians who are willing to support the desires of these parasites, especially now that money has been ruled 'free speech'.

Re:Maybe, maybe not. (4, Insightful)

MightyMartian (840721) | more than 3 years ago | (#37098972)

The whole "pro-artist" claim was pure unadulterated bullshit even before this latest wrinkle. Look at acts like King Crimson and Tom Petty and the Heartbreakers, who basically were ripped off in every conceivable way. The record companies, even where the contract bound them, simply ignored it, did what they wanted, and then challenged the artists to come after them. Tom Petty, as I understand, had hit records under his belt and went broke at one point. Robert Fripp has had an ongoing war with Universal/UMG over their violation of contracts, even to the point where this huge corporation with a kazillion accountants cannot even provide him with a printout of the the royalties owed to him. Basically, their attitude has been "Don't like it, sue us, and we'll keep this going forever." In Fripp's case, he's called their bluff and has basically told them he is willing to fight on until a judge orders compliance.

Hell, even EMI tried to fuck over the Beatles on royalty payments, basically withholding, in violation of contract, until the surviving members and the estates of Harrison and Lennon went after them. If they have no compunction against picking the most successful music act in history's pockets, imagine being a relatively small-time player.

The record companies have been evil thieving bastards for decades. Guys like Bo Diddley, who recorded seminal and highly influential pieces in the popular music genres were given a pittance, and even saw their publishing rights screwed from them, so they couldn't even at least enjoy any substantial benefit from having written the songs.

Re:Maybe, maybe not. (1)

Chaonici (1913646) | more than 3 years ago | (#37099104)

Tom Petty's 2002 album, The Last DJ [wikimedia.org] , is partially a stab at the greed and evil of the recording industry. Particularly, the tracks The Last DJ, Money Becomes King, Joe, and Can't Stop The Sun.

Re:Maybe, maybe not. (0)

Anonymous Coward | more than 3 years ago | (#37099318)

In the immortal words of Frank Zappa (talking to the Devil): "I'll prove to you that I'm bad enough to go to hell, because I've been through it! I have seen it! It has happened to me! Remember, I was signed with Warner Brothers for eight f**king years!!!"

Re:Maybe, maybe not. (2)

zegota (1105649) | more than 3 years ago | (#37099012)

You really think a significant portion of the electorate is going to vote based on whether or not Billy Joel should be able to retrieve the rights for his songs?

Re:Maybe, maybe not. (1)

n5yat (987446) | more than 3 years ago | (#37099624)

Not likely... every election folks are very disappointed with the job CONGRESS is doing, but they think their own district's representative is just fine. So they re-elected their guy, and that happens across all districts, with the results that the success rate for incumbents is pretty high. http://www.opensecrets.org/bigpicture/reelect.php [opensecrets.org]

Re:Don't worry, the RIAA owns Congress too (1)

PTBarnum (233319) | more than 3 years ago | (#37098710)

Fortunately congresspeople, like creators of other works of law, were granted 'termination rights,' which allow them to regain control of their souls after 35 years, so long as they apply at least two years in advance. 'We believe the termination right doesn’t apply to most politician souls,' said Lucifer, general counsel for the Decree Enacting Vocational Industry League, a lobbying group in Washington that represents the interests of lobbyists.

Re:Don't worry, the RIAA owns Congress too (2, Informative)

Anonymous Coward | more than 3 years ago | (#37098738)

You're cynicism is laudable, but you fail to recognize that Congress has many masters, and sometimes these masters come into conflict. In fact, the RIAA got Congress in 1999 to say that recordings were works for hire, but the musician lobby subsequently had that amendment repealed. This is why the definition of "work for hire" under S. 101 of the Copyright Act has the absurd language telling courts to disregard the previous amendment. Otherwise, the fact that Congress repealed it would tell courts that the recordings definitely weren't works for hire. Part of the compromise struck was that Congress would attempt to put the status quo back into place so that the RIAA and musicians could try their luck in the courts, without ostracizing their congress critters further.

Think of the Artists (1)

Anonymous Coward | more than 3 years ago | (#37098532)

Won't somebody think of the artists? It's a shame there wasn't a group who could fight tirelessly for the rights of the starving artists who are struggling to make ends meet. /sarcasm

OK fine, they were employees (5, Funny)

Anonymous Coward | more than 3 years ago | (#37098568)

OK, fine. They were employees. You did file all the IRS paperwork required for an employee, didn't you? No? Hello, RIAA this is the IRS. We'd like to review some matters with you...

Re:OK fine, they were employees (1)

rveldpau (1765928) | more than 3 years ago | (#37098612)

That's good. If I had moderation points, you'd be getting them

Re:OK fine, they were employees (0)

Compaqt (1758360) | more than 3 years ago | (#37098982)

Well, I do have mod points, but the latest Slashcode update removed the handy "Moderate" button at the bottom of the page, making it impossible to moderate if you have JavaScript turned off. /rant

Bring back the "Moderate" button!

Re:OK fine, they were employees (1)

Asic Eng (193332) | more than 3 years ago | (#37099398)

I think you basically just need to set: Account->Discussions->Classic Discussion System(D1).

Re:OK fine, they were employees (3, Insightful)

TheSpoom (715771) | more than 3 years ago | (#37098814)

I guarantee that legally speaking, they'll claim they were independent contractors, which allows a "work for hire" without all the messiness of an employer-employee relationship. It has the added bonus of making the musician responsible for all taxes.

Re:OK fine, they were employees (1)

Compaqt (1758360) | more than 3 years ago | (#37098954)

Wha? I thought that being an independent contractor is exactly the situation in which you do own your own work, unless you have an explicit contract stating "work for hire".

Re:OK fine, they were employees (4, Interesting)

cpt kangarooski (3773) | more than 3 years ago | (#37099200)

It's somewhat more complicated.

In the US, a work may be a work made for hire under one of two circumstances:

First, if the work is specially ordered or commissioned, the work falls into one of a handful of categories enumerated in the Copyright Act (e.g. part of an atlas, part of a motion picture) and the parties involved expressly agree in a written instrument that they both sign, that the work shall be considered a work made for hire. (N.B.: Unless the work is of one of the specific types, explicitly saying that a work is made for hire doesn't mean anything.)

Second, if the work is prepared by an employee in the scope of their employment, the employer will be considered to be the author, unless the parties involved expressly agree in a written instrument that they both sign, that the work shall not be considered a work made for hire.

But Congress never really addressed what constitutes employment in this situation, so the courts will look at a number of factors to try to figure it out, e.g. who supplied the equipment that was used, where the labor occured, how it was treated for tax purposes, etc. It's entirely possible for a contractor to be considered an employee for the purposes of this part of copyright law, given the right circumstances.

The Wikipedia [wikimedia.org] article on this goes into more depth.

Re:OK fine, they were employees (3, Insightful)

gman003 (1693318) | more than 3 years ago | (#37099206)

No no no! Don't introduce those two organizations! You'll reach a critical mass of evil and the world will collapse into a singularity!

Covers (2)

Dj Stingray (178766) | more than 3 years ago | (#37098588)

Can an artist make a "Cover Song" of his/her song out of contract of a big record label, I wonder why artists haven't thought of this. Or do record companies own everything an artist does while in contract?

Re:Covers (1)

chefmonkey (140671) | more than 3 years ago | (#37098660)

Some have. For some reason, they rarely turn out to be very good, and some are downright impossible to listen to. For example, if you are at all familiar with Jefferson Starship/Starship, I dare you to listen to this album: http://www.amazon.com/Greatest-Hits-Of-The-80s/dp/B000VB9WSO/ [amazon.com]

Re:Covers (1)

Miamicanes (730264) | more than 3 years ago | (#37098984)

In the real world, here's what happens to pop stars: their song becomes #1, they sing and perform it a bazillion times, get burned out of singing and performing that song and vow to never, ever sing it again, and literally go for 20 years without so much as humming the melody. Then their kids get to college, and Princeton/Yale/Harvard is pretty expensive, even if you ARE fairly wealthy. They also start feeling old, and decide to go on tour to rekindle the flame, relive their youth, and pay their kids' tuition -- and at that point, they literally haven't sung the song in 20 years. If they're lucky, they kept singing for fun in the meantime, and still have that skill & their voices, so they can relearn it. If not... well... they get to lipsync a lot and disappoint people at dog tracks, fairs, and college homecoming events for the next couple of years.

The point is, 20+ years down the road, quite a few former popstars would be better off NOT trying to resurrect their careers by performing their old songs. A few artists pull it off and shine. The other 97% end up disillusioning and disappointing their fans.

Re:Covers (1)

The Grim Reefer2 (1195989) | more than 3 years ago | (#37099026)

Some have. For some reason, they rarely turn out to be very good, and some are downright impossible to listen to. For example, if you are at all familiar with Jefferson Starship/Starship, I dare you to listen to this album: http://www.amazon.com/Greatest-Hits-Of-The-80s/dp/B000VB9WSO/ [amazon.com]

First of all, anything they did after changing their name from Jefferson Airplane is downright impossible to listen to . So even the original recordings were awful IMO. But that album was recorded in 2007, so most, if not all, of the songs were recorded 20+ years later. On top of that, I don't think any of the members that were on the 2007 recording were in the band in the 80's, or it was only one member at best. And, no, I won't take that dare.

Re:Covers (2)

afabbro (33948) | more than 3 years ago | (#37099254)

First of all, anything they did after changing their name from Jefferson Airplane is downright impossible to listen to.

And anything before they changed the name was even worse.

Re:Covers (1)

thestudio_bob (894258) | more than 3 years ago | (#37099182)

Haha... I was renting a studio space out of a place in St. Louis years ago and Marty Balin was there recording some songs for a new album. I've never fully recovered from those two weeks of listening to him sing.

This was the album... Freedom Flight [cduniverse.com]

Re:Covers (0)

Anonymous Coward | more than 3 years ago | (#37098686)

http://www.amazon.com/Spot-Difference-Squeeze/dp/B003O63T28/ref=sr_1_1?ie=UTF8&qid=1313439201&sr=8-1

Difford and Tilbrook FTW.

Re:Covers (0)

Anonymous Coward | more than 3 years ago | (#37098770)

I believe John Fogerty, the lead singer of Creedence Clearwater Revival, made a solo cover of a CCR song. The record company sued him. He sounded too much like himself. Not sure how that was finally settled.

Re:Covers (4, Interesting)

MightyMartian (840721) | more than 3 years ago | (#37099062)

It's an amusing in a "they did what?" kind of way. Fogerty had had a very unpleasant breakup from his band and his old record company. About 15 years after CCR released Run Through The Jungle, Fogerty basically lifted the chorus and overall structure of song (which he wrote) for the song Old Man Down The Road. His old record company sued him for copyright infringement. In the end, he did prevail, but the whole thing was ludicrous, and part of a very long-running set of disputes that Fogerty had with his former band, his former label and his former management.

Funny... (4, Insightful)

WillyWanker (1502057) | more than 3 years ago | (#37098598)

It's funny how the RIAA is so concerned with artists' livelihoods when they're bitching about piracy. But when it actually comes time to pay those artists, or transfer the ownership of the songs they created, the RIAA suddenly starts playing a different tune (pun most certainly intended).

Re:Funny... (2)

observer7 (753034) | more than 3 years ago | (#37098750)

i agree .they want to have it both ways ,shows the real reason is greed.

Re:Funny... (0)

Anonymous Coward | more than 3 years ago | (#37099054)

Since they claim the artists were their employees, ask the recording companies for documentation to show they paid the employer taxes. What, they didn't pay their taxes and benefits? Then either they weren't employees, or they committed fraud in not paying the IRS.

Screw the artists! (1)

msobkow (48369) | more than 3 years ago | (#37099224)

Screw the artists! We want to keep making money off them in perpetuity.

We'll just say they're "employees", despite the fact no taxes were deducted from the "payroll", no hours reported to any employment agencies, or anything else to indicate they were anything but independant artists.

Feh. The RIAA and MPAA make me sick with their fraudulent accounting games. They're nothing but thieves who contribute NOTHING OF VALUE.

Shocked! (4, Informative)

Baloroth (2370816) | more than 3 years ago | (#37098646)

'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,

Really? I definitely didn't see that coming. It is absolutely shocking that the RIAA and co. would think that they own the recording artist's soul.... er music for all time. /sarcasm

OF COURSE the RIAA is going to say that. Nevermind that the law was specifically created to handle this kind of situation, the RIAA doesn't care about the law, the artists, or consumers, they only care about the profits of their cartel. It isn't "work for hire": if that were the case, the artists would get absolutely no royalties (royalties are more or less an admission that you still own the copyright in part). Of course, they often don't get any actual royalties, but that is besides the point. Again, the artist wouldn't go on tour performing the music, the music wouldn't be released under the artist's name, all sorts of things.

The record companies finance the recording and advertising of the work, but they don't create it in any way, neither in the performance nor the writing. They deserve some recompense for that, but 35 years worth is far, far more than enough. They didn't actually do the creative effort, and they shouldn't be able to control the ultimate destiny of the recording. Work for hire might go if they wrote a song and asked someone to sing it. But generally, all creative effort belongs solely to the artist, and they deserve control of their work.

HDH and SAW (1)

tepples (727027) | more than 3 years ago | (#37098732)

Work for hire might go if they wrote a song and asked someone to sing it.

Not all recording artists write their own songs. How many artists have recorded songs by Holland-Dozier-Holland or Stock Aitken Waterman or other similar songwriting and production teams?

Re:Shocked! (4, Insightful)

DavidTC (10147) | more than 3 years ago | (#37098844)

The record companies finance the recording and advertising of the work, but they don't create it in any way, neither in the performance nor the writing.

No, even that isn't true. Record companies don't finance the recording or advertising of the work.

They issue a loan to the artist called an 'advance' (Which is spent on making the record.) and require the artist to pay it back before they start making any money.

The idea that it's a work-for-hire is complete and utter nonsense. At no point has the music industry ever operated like that.

Re:Shocked! (1)

Baloroth (2370816) | more than 3 years ago | (#37099118)

No, even that isn't true. Record companies don't finance the recording or advertising of the work.

They issue a loan to the artist called an 'advance' (Which is spent on making the record.) and require the artist to pay it back before they start making any money.

That is, by one definition, "financing". Just like a bank finances a mortgage for you to buy a house. The record company takes a chance (albeit a fairly small one) by advancing the money. However, you are correct, the artist is expected to pay it back (hence my comment about many artists not seeing any royalties: those go back to the record company). My point is that many artists (at least in the past) couldn't have succeeded without this financial aid and the resources of the recording industry, and I am willing to grant them (some) credit for that. Sure, it's like giving the devil credit for your musical talent in return for your soul... but still, the record companies do have something of a genuine role.

I still wish they would crawl into a corner and die (or better yet be lined up against a wall and shot), since they are no longer really needed and serve mainly to steal money from creative artists. And shove their crap music down our throats via radio and TV.

Re:Shocked! (1)

Anonymous Coward | more than 3 years ago | (#37099446)

They issue a loan to the artist called an 'advance' (Which is spent on making the record.) and require the artist to pay it back before they start making any money.

So if Congress decides that the record companies, or the financiers, own recordings made in that kind of situation, doesn't it follow that nearly everything in America is a work-for-hire owned by the credit card companies and the banks?

Re:Shocked! (0)

Anonymous Coward | more than 3 years ago | (#37099128)

And the financing is in the form of a loan. The artists are expected to pay it back. That doesn't grant the labels any ownership rights.

Re:Shocked! (0)

Anonymous Coward | more than 3 years ago | (#37099156)

'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,

Really? I definitely didn't see that coming. It is absolutely shocking that the RIAA and co. would think that they own the recording artist's soul.... er music for all time. /sarcasm

It's especially un-shocking given that they spent good money bribing staffers to stuff an unrelated provision making ALL sound recordings works-for-hire into a bill in 1999...

Lots of different rights involved. (4, Insightful)

AJWM (19027) | more than 3 years ago | (#37098704)

The studio may well own the copyright on the sound recording, just as a book publisher may own the copyright on the plates used to print a book, but unless they retain performance rights and other copyrights on the original song music and lyrics (which the original composer/songwriter could revert under this law), they can't let anyone perform that recording, or make additional copies of it. (Just as a book publisher couldn't use his plates to make additional copies of the book if the original copyright has reverted.)

The devil is partially in the details of the contract, of course. But there's no single copyright in a work, it's a collection of rights which can be sliced up and sublicensed all kinds of different ways, and over and over again unless the artist sold/licensed a right exclusively. (Writer/publisher Dean Wesley Smith compares this to a pie from which you can sell slices indefinitely, what he calls The Magic Bakery.)

(Disclaimer: IANAL, but I am a writer with a vested interest in understanding copyright law.)

Even if it's not a work for hire.... (2)

davidwr (791652) | more than 3 years ago | (#37098730)

The master recordings is like an original artwork. While they may belong to the studio, the right to make new copies from them belongs to the copyright owner not the owner of the physical copy.

But, without the original recordings, "new copies" can't be made, effectively turning the existing print run into a limited edition. A limited edition of millions, perhaps, but still limited.

Re:Even if it's not a work for hire.... (1)

Compaqt (1758360) | more than 3 years ago | (#37099034)

Well, what if CD's have been made of the record in the meantime? As in "digital, perfect" copies?

Re:Even if it's not a work for hire.... (1)

maxwell demon (590494) | more than 3 years ago | (#37099084)

But, without the original recordings, "new copies" can't be made, effectively turning the existing print run into a limited edition. A limited edition of millions, perhaps, but still limited.

The artists only need to buy a single CD of the recording, and since they own the copyright, they can do as many copies of it as they want.

Minor clarification (1)

davidwr (791652) | more than 3 years ago | (#37099572)

I made the assumption that, as "master recordings," they contained information that was not available in any published copy.

Two examples:

* The master recordings were analog and in a higher fidelity than any published copy, or they were in a digital format and were in a higher fidelity than any published copy

* The master recordings were the tapes used by the engineer to make the "disk master" from which consumer copies are made. Master recordings may have one track per microphone or instrumental pickup, if not more. The "disk master" is probably 2-tracks (stereo) to mirror the consumer product.

As artifacts, the studios own the master recordings. In this way, they are like an original painting.

Hope the artits have deep pockets (3, Insightful)

softWare3ngineer (2007302) | more than 3 years ago | (#37098736)

because they will need them for the decades of litigation that it will take to get the song rights back.

Re:Hope the artits have deep pockets (1)

jedidiah (1196) | more than 3 years ago | (#37098944)

Some of them do actually. So this might end up successfully litigated in their favor.

The biggest cash cows will likely involve the richest musicians. However, any precedents will likely carry weight even for the more obscure and penniless artists.

I could see Janie Lane yanking Cherry Pie into the public domain just out of spite (if he weren't dead already).

RIAA killing music? (1)

lucidlyTwisted (2371896) | more than 3 years ago | (#37098796)

So rather that fighting the corner for the poor, starving, down-trodden artist; the RIAA is fighting for the rich, fat, blundering behemoths.
Who'd a'thought that?
Hypocritical scum-suckers

Musicians pay for everything (0)

Anonymous Coward | more than 3 years ago | (#37098818)

That won't hold because the bands are paid and then charged for every individual cost. Normal employers don't charge you for pencils, paper, computers, lighting, travel expenses, etc that you use to do your job. But none of that matter, like the other posters said, RIAA owns congress.

work for hire requirements (5, Informative)

bioster (2042418) | more than 3 years ago | (#37098860)

It was recently pointed out to me that I was wrong about how I thought a 'work for hire' worked. So I did 10 seconds of research on wikipedia (yeah yeah, not authoritative, blah blah), and found this page:
http://en.wikipedia.org/wiki/Work_for_hire [wikipedia.org]

Giving it a read might help you arm-chair lawyers, but I'll skip to an easily digested sound bite for everyone:

A "work made for hire" is— (1) a work prepared by an employee within the scope of his or her employment

On the other hand, if the work is created by an independent contractor or freelancer, the work may be considered a work for hire only if all of the following conditions are met: * the work must come within one of the nine limited categories of works listed in the definition above, namely (1) a contribution to a collective work, (2) a part of a motion picture or other audiovisual work, (3) a translation, (4) a supplementary work, (5) a compilation, (6) an instructional text, (7) a test, (8) answer material for a test, (9) an atlas; * the work must be specially ordered or commissioned; * there must be a written agreement between the parties specifying that the work is a work made for hire.

So, put simply you either have to be a regular 9-5er employee (which I think it's clear the vast majority of musicians are not), or you have to fulfil a pretty specific list of requirements which includes an explicit clause in their contract that it be a work for hire. Long story short, they've got no case.

Re:work for hire requirements (0)

Anonymous Coward | more than 3 years ago | (#37099044)

While copyright is a matter of federal law, labor laws are more of a state matter.

Here in PA work by contractors are considered work-for-hire unless otherwise specified.

I've said it many times before: Slashdot is a bad, bad place to get legal advice. Wikipedia is almost as bad.

Re:work for hire requirements (0)

Anonymous Coward | more than 3 years ago | (#37099152)

The categories aren't that hard - "(1) a contribution to a collective work" could apply to a typical song; the song is a collective work if different people worked on it, e.g. somebody wrote the lyrics, somebody else the music, somebody else did the mixing, somebody else the album art, etc. "(2) a part of a motion picture or other audiovisual work," might also fit depending on the definition of "audiovisual work". Does audio-only count as audiovisual? Or maybe having album art makes the work an audiovisual work?

"[T]he work must be specially ordered or commissioned" seems pretty straightforward - "we have a contract, therefore the work was commissioned".

Re " there must be a written agreement between the parties specifying that the work is a work made for hire." , see http://dir.salon.com/tech/feature/2000/06/14/love/index1.html [salon.com] for why this is not an issue.

Re:work for hire requirements (0)

Anonymous Coward | more than 3 years ago | (#37099558)

IANAL but you might want to take into consideration State laws.

"Depending on the relevant jurisdiction, state law effects may also come into play. For example, under California law, an individual who is commissioned to perform work on a work made for hire basis can be deemed to be a "Statutory Employee." If such an individual is deemed to be a Statutory Employee, the company may be liable for employee-related expenses such as State Disability Insurance and Unemployment Insurance."
http://www.pillsburylaw.com/index.cfm?pageid=34&itemid=39637

Studios greed will be their undoing (3, Interesting)

bobdotorg (598873) | more than 3 years ago | (#37098874)

The studios' accounting tricks in their standard artist's contract is what will kill them. Awesome.

FTFA:

Not only have recording artists traditionally paid for the making of their records themselves, with advances from the record companies that are then charged against royalties, they are also exempted from both the obligations and benefits an employee typically expects.

Here's my favorite article about record contracts from the pre-internet era:
http://www.ram.org/ramblings/philosophy/fmp/albini.html [ram.org]

Re:Studios greed will be their undoing (1)

xMrFishx (1956084) | more than 3 years ago | (#37099520)

I read that, it was interesting, cheers.

intellectual property law doesn't protect creators (2)

circletimessquare (444983) | more than 3 years ago | (#37099014)

it protects distributors. as such, it is a joke, a lie

and i'm not sure how to fix it. we do need some sort of intellectual property law. but enough sonny bonos in congress, enough lawyer hacks working for disney, extending the concept of intellectual property into realms of absurdity in terms of period of time and type of property, for a few more pennies on the corporate bottom line, and we have a broken system with no easy path to repair

I think the RIAA is jealous (1)

Chaonici (1913646) | more than 3 years ago | (#37099016)

Ever since they stopped filing mass lawsuits against music sharers, public hatred for the RIAA has dropped a bit. Yes, they're still doing evil things behind the scenes, like pushing for "three strikes" and supporting ACTA, but those acts aren't publicized as well as the mass lawsuits were.

By contrast, the MPAA is constantly in the news about the latest evil thing it's been doing. The same goes for similar organizations like the BSA, IFPI, and AFACT.

I think the RIAA is yearning for the days when they were the most hated copyright organization, even if they don't consciously realize it. This is one of their attempts to get back in the game and earn some well-deserved public enmity.

Someone Should tip off the Tax Guy (1)

Anonymous Coward | more than 3 years ago | (#37099066)

Someone should tip-off the tax guy and have him try to collect backward tax with penalty.
It should make a small dent in the deficit.

Just remember... (2)

J'raxis (248192) | more than 3 years ago | (#37099178)

When watching this fight ensue, just remember that this is the organization that has spent the past 15-20 years fighting "piracy" claiming to be standing up for the rights of their artists.

Re:Just remember... (0)

Anonymous Coward | more than 3 years ago | (#37099660)

Yeah. And BMI/ASCAP are sooo concerned with their artist's livelihoods that they will walk into small coffeehouses where a CD is playing (or an open mic musician is playing a cover song), and fine the owner $10000 if he doesn't agree to pay them $1500/year for the right to play copyrighted music in his establishment. All of these fines and fees of course are returned to the artists ... uh, wait, no ... BMI/ASCAP decide which "deserving" artists get a slice of this money. In most cases, deserving=commercially promising, so I could be sitting in Java Haus playing my friend Ken's copyrighted song and BMI could walk in take $1500 from Deron the owner, and turn around and give it, not to Ken (who could really use the cash to pay his rent), but instead give it to Beyonce (who sells more music). Fuck that.

No, really, I would. BMI/ASCAP were created by the goverment back in the first half of the 20th century to protect artists whose music was getting played on radio stations but who weren't getting any royalties. Considering I could self-publish, and collect my own royalties, and the fact that BMI/ASCAP have morphed into just another collection agency for the music mafriaa, it's time for the government to do some un-creating.

Minor clarification (3, Interesting)

davidwr (791652) | more than 3 years ago | (#37099192)

I made the assumption that, as "master recordings," they contained information that was not available in any published copy.

Two examples:

* The master recordings were analog and in a higher fidelity than any published copy, or they were in a digital format and were in a higher fidelity than any published copy

* The master recordings were the tapes used by the engineer to make the "disk master" from which consumer copies are made. Master recordings may have one track per microphone or instrumental pickup, if not more. The "disk master" is probably 2-tracks (stereo) to mirror the consumer product.

As artifacts, the studios own the master recordings. In this way, they are like an original painting.

Business models (2)

spaceyhackerlady (462530) | more than 3 years ago | (#37099262)

I was amused to read in the article how the record companies are increasingly dependent on older releases, since newer releases are distributed through different means that don't involve them. This begs the usual question, who guaranteed that a particular business model would be a valid one forever? I wasn't aware of any such guarantees.

They also invoke ILLEGAL DOWNLOADING as part of the reason for their decline in sales. Gasp. Eek. Yikes. No evidence, of course, but they know it's happening. For sure. Yup.

The fact that many of the new releases are crap doesn't seem to enter in to it...

...laura

Marks is off the mark (1)

oh-dark-thirty (1648133) | more than 3 years ago | (#37099320)

Steve Marks has been RIAA's legal puppet for a looong time, he must be doing something "right". I remember writing nasty letters to him back in the day, just for sport; he's an arrogant prick and I hope he's proven wrong.

War, huh? (0)

Anonymous Coward | more than 3 years ago | (#37099358)

Somehow, I doubt people will be killed and orphaned over this.
Whatever happened to good ol' sane sports metaphors?

Communist assassins (1)

Msdose (867833) | more than 3 years ago | (#37099430)

In a capitalist country the artists would be able to raise capital by selling shares in their enterprise. They could then hire the recording companies offering the best terms. Ditto for any other enterprising person with a good idea. The government regulation and legal system have made it too expensive to do this unless you're already rich. This protects the rich from competition from the poor, and keeps the poor voting for communist governments who are paid off by the rich to pretend that more regulation and expense will punish the rich, but actually protects them from competition from the poor.

Maybe this is a good thing... (2)

grapeape (137008) | more than 3 years ago | (#37099450)

Look at how many popular bands from the late 70's and early 80's are still around now and still popular. Bands like Aerosmith, Van Halen, ACDC, Pink Floyd, Kiss, Elvis Costello, The Cure, Prince, Tom Petty, Fleetwood Mac, The Pretenders, John Melancamp, Bruce Springsteen, etc...are all still around in one form or another and all still selling well and have huge fan bases. Perhaps this the the time when the RIAA's hypocrisy is fully exposed and the tide turns? While money can be very influential in politics so is a support base...I would imagine that it would be rather easy for artists to enlighten and sway popular opinion. While I know its definitely a difficult fight, ultimately the politicians care about reelection more than how greased their palms get in the short term and going up for reelection as "the guy that screwed over Springsteen" surely isn't going to garner the popular vote, the RIAA may have the money but they dont have the electorate.

What! (1)

bigsexyjoe (581721) | more than 3 years ago | (#37099658)

Rewarding people for their work contradicts the principles of the free market. It will not be allowed.
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