Ray Charles' Foundation Sues His Own Children In Copyright Fight

from the termination-can't-be-contractually-taken-away dept

The Ray Charles Foundation is now suing seven of his children for $3.5 million -- basically asking for their inheritance back -- after the children sought to terminate the copyrights on his songs and regain control over them. There's a bit of a backstory here. Apparently, before he died, Charles gathered a bunch of his children, and told them that he was leaving each of them $500,000 (and enough to cover the taxes on the money) if they signed agreements stating that was all they would get, and that they would not seek to get anything else from his estate. However, recently a bunch of the children have begun the process of terminating the copyright assignments over Charles' songs, and the Foundation is arguing this is a breach of that agreement.

Now, my first thought upon reading the CNN article above is that this doesn't make much sense. We've been discussing copyright termination rights for a while, and one clear aspect of them is that you cannot contractually give up your termination rights. I would think that a contract that provided something that you lose if you exercise your termination rights would not be enforceable for that reason. If you haven't been following the details of the termination rights issue, under the 1976 copyright act, original creators can "terminate" the assignment of their copyright and basically reclaim it from whoever has it at the 35 year mark. Thus, musicians who signed record deals in 1978 (when the Act first came into effect) can start reclaiming their rights next year.

However, the details found in the actual lawsuit (pdf and embedded below) are a bit more complicated. First of all, as we've discussed at length, if the artist is considered to have done work under a "work for hire" agreement (and the terms of what counts for work for hire are very specific and go way beyond just saying it's work for hire), then termination rights do not apply. In this case, the Ray Charles Foundation is actually arguing that Ray Charles' agreement with Atlantic Records was a "work for hire" situation. This is a little strange. Normally, we see the record labels arguing that it was work for hire, but the artist or their heirs arguing it was not. In this case, however, since the Foundation is completely cut off from the heirs, it seems to be arguing in favor or a work for hire arrangement. Also, the reason why the 1976 Act's termination rights apply to works from before 1978 is a bit complicated, but it has to do with a new agreement that Charles made concerning his works in 1980.

If you find this all a bit confusing, you're not the only one. The Foundation notes that Charles' children aren't even sure which works can be terminated, and because of multiple copyright registration dates, they've been filing for termination on the same work multiple times:
The situation of the Ray Charles song "Mary Ann," is illustrative: Defendants have served a purported termination for a supposed January 23, 1955, transfer (supposedly to take effect on April 1, 2012), another purported termination for a supposed May 2, 1963, transfer (supposedly to take effect on May 3, 2019), and, because "Mary Ann" is an Assigned Composition under the 1980 Agreement, a third termination for a supposed transfer contained in this September 23, 1980, agreement (supposedly to take effect on November 15, 2015). Even if some of the terminations were deemed valid, it is still extremely difficult, if not impossible to determine when the copyright of the Assigned Compositions will change hands.
Of course, I'm not so sure that's a reasonable excuse for ignoring termination rights altogether. Just because the labels and Charles may have had piss poor record keeping, people should just throw their hands up in the air and ignore termination rights?

Reading through this lawsuit really highlights just what a complete and total mess copyright law is, and how it's such a complicated mess due to the way it's been adjusted and changed over the years, that the system is really quite hopelessly broken. A situation like the one described above with multiple termination notices on the same song is just illustrative of the problem. Furthermore, while I'm not a fan of the concept of termination rights in general, this case could get interesting for being one (of many) testing challenges over whether or not artist agreements from decades ago were really "work for hire" situations -- and this is a case where the label isn't actually involved (right now). That makes it one worth watching.

Of course, there is a separate issue that hasn't been brought up yet, but I wonder if it will make an appearance at some point. In his book The Public Domain, James Boyle tracks down the true history of Ray Charles' classic song "I Got a Woman". What he discovers is that, contrary to what has been said before, the song was actually a copy of a song by the Bailey Gospel Singers called "I've Got a Savior" (whereas the common wisdom is that Charles was actually copying a public domain song "Jesus Is All The World To Me"). As Boyle discovered, "I've Got a Savior" is much much closer to "I Got a Woman". And that's at least somewhat problematic, since "I Got a Woman" came out just three or four years after "I've Got a Savior" (which itself borrowed heavily from other works). So, once could make an argument that "I Got a Woman" (which is one of the songs being disputed here) may have some fairly shallow copyrights on just the changes from that other song.

Of course, perhaps the larger point in all of this is that almost all of the songs being fought over should be going into the public domain about now. "I Got A Woman", for example, received its copyright on December 20th, 1954 -- at which point it would have been given a 28 year grant, renewable for another 28 years. As such it should have gone into the public domain in 2010. There are a bunch of other songs on the list that received their original copyright in 1955 and 1956 -- all of which should be going into the public domain right now, but are not. Perhaps that's the real issue that we should be focusing on: how the public has been completely robbed of these works, violating the promise made to the public in exchange for granting Charles and Atlantic Records that original copyright.


Reader Comments (rss)

(Flattened / Threaded)

  1.  
    identicon
    Anonymous Coward, Apr 3rd, 2012 @ 12:50pm

    Why woudl Ray Charles' children have ANY rights to his music. He signed an agreement transfering the rights to the record company (most likely for a sizeable amount of money). This is money that the record company INVESTED. If anyone has termination rights it should be the record label which purchased the rights.

     

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  2.  
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    Vincent Clement (profile), Apr 3rd, 2012 @ 12:52pm

    I'm waiting for the copyright maximalists to explain how any of this will encourage Ray Charles to write new material?

     

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  3.  
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    Nathan F (profile), Apr 3rd, 2012 @ 12:53pm

    Re:

    I would more properly ask why should the record company have any rights to the music in a few more years, after all copyright is a limite... oh never mind, they changed the rules of the game partway through again.

     

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  4.  
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    Sowat Elsis Nue, Apr 3rd, 2012 @ 12:54pm

    It's about money.

    It's always about money.

     

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  5.  
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    :Lobo Santo (profile), Apr 3rd, 2012 @ 12:55pm

    Re: !

    He's probably spinning is his grave--spinning to a funky brand-new beat!

     

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  6.  
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    Nathan F (profile), Apr 3rd, 2012 @ 12:58pm

    Re:

    I could see the copyrights of a work made for hire under those very strict definitions of "Work for Hire" keeping their rights after the creator pass on, but please stop extending copyright length.

    Also.. since companies are considered people now and monetary donations are considered speech, copyright on a work is life of the author (the company) + X years... does the copyright never expire?

     

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  7.  
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    weneedhelp (profile), Apr 3rd, 2012 @ 1:03pm

    WOW what a POS Ray Charles must have been.

    Apparently, before he died, Charles gathered a bunch of his children, and told them that he was leaving each of them $500,000 (and enough to cover the taxes on the money) if they signed agreements stating that was all they would get, and that they would not seek to get anything else from his estate.

    Wow. Why you wouldn't want to leave your spouse/offspring an equal cut of everything?

    I guess Ray just saw things a little different than I do.
    I guess they just didn't see things eye to eye.

     

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  8.  
    identicon
    Anonymous Coward, Apr 3rd, 2012 @ 1:06pm

    Re: WOW what a POS Ray Charles must have been.

    On the other hand... we can probably trot this story out anytime a copyright maximalist tries to use the old "why can't a musician provide for his family" argument.

     

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  9.  
    identicon
    Anonymous Coward, Apr 3rd, 2012 @ 1:06pm

    Re:

    That's a good question, why does copyright last so long that dead people's children get to quibble over the copyrights.

    Oh, you weren't really saying that at all. You were trying to say it makes perfect sense for a god damn fucking company that's never created anything and never could to own copyrights after the actual artist is dead but somehow giving those rights to his children makes no sense.

     

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  10.  
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    Anonymous Coward, Apr 3rd, 2012 @ 1:10pm

    Termination rights

    Setting aside the "work for hire" question...

    If termination rights cannot be contractually given up (i.e. they are a natural right), then can they be inherited, which is a form of transference? Wouldn't they evaporate upon the death of the natural holder of the right?

     

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  11.  
    identicon
    Anonymous Coward, Apr 3rd, 2012 @ 1:10pm

    Re:

    It would make no sense for the record company to recover the rights from the record company. I do however agree that the children should not be able to terminate the rights. If he left each of them only the trust, at some point in his will he left "all his other Worldly possession" to someone else. Whoever that was (The Foundation?) is the enity that should be able to recover the rights to the music.

     

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  12.  
    identicon
    Anonymous Coward, Apr 3rd, 2012 @ 1:11pm

    Re: WOW what a POS Ray Charles must have been.

    $500,000 sounds like 'set for life' if you invest prudently and don't blow all the money on stupid shit so quickly you're back 8 years later trying to get another slice of the pie...

     

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  13.  
    identicon
    Anonymous Coward, Apr 3rd, 2012 @ 1:12pm

    Re: Termination rights

    Won't that give corporations a motivation to kill their artists?

     

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  14.  
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    weneedhelp (profile), Apr 3rd, 2012 @ 1:26pm

    Re: Re: WOW what a POS Ray Charles must have been.

    500,000 is 10 years at 50k.

    "if you invest prudently"
    I watched a co-worker lose close to 100,000 last year or so. When you come across a guaranteed investment that turns 500,000 into "set for life", please let the rest of us know.

    A fair goal of 50-60K a year will set most responsible people up.

     

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  15.  
    identicon
    Timo, Apr 3rd, 2012 @ 1:35pm

    Copyright

    Copyright. Stealing from the public domain since 1831.

    What else is news?

     

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  16.  
    identicon
    Faceless Minion, Apr 3rd, 2012 @ 2:31pm

    I'm sorry, but continuing to complain about termination rights in this case is stupid. They SHOULDN'T have rights to this music! It wasn't theirs to begin with, they did nothing to earn rights to it, and they accepted in Ray's will that they wouldn't try to do this kind of garbage!

    This isn't some bleeding heart story about how removing termination rights hurts artists. This is a story about some greedy-ass spoiled brats trying to take something that doesn't belong to them.

     

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  17.  
    identicon
    Anonymous Coward, Apr 3rd, 2012 @ 2:33pm

    Re:

    You obviously don't understand termination rights. Only the creator can have them. They are granted by default when the work is created. They cannot be signed away in a contract. They are also passed down with the creator's estate automatically. A record company cannot get. Termination rights also vanish though when it enters the public domain which is where most of these should be. The dispute is pointless.

     

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  18.  
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    Anonymous Coward, Apr 3rd, 2012 @ 2:44pm

    It's not termination rights that they signed away

    They signed away the rights to the songs. Yes you cannot sign away termination rights, but if I sell you the rights to a song I wrote, you do not gain termination rights on them if you go and sell the song to someone else. So why his kids should be able to do this I have no idea.

     

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  19.  
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    Anonymous Coward, Apr 3rd, 2012 @ 2:45pm

    Re: WOW what a POS Ray Charles must have been.

    My suspicion is that he wanted to give them each a sizeable amount and wanted the rest to go to charity (ie. his foundation) where it could be used to help others.

     

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  20.  
    identicon
    Anonymous Coward, Apr 3rd, 2012 @ 2:47pm

    Re: WOW what a POS Ray Charles must have been.

    "I guess Ray just saw things a little different than I do."

    I should say so. Ray didn't "see" much of anything.

    (Sorry. I had to go there.)

     

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  21.  
    identicon
    DCX2, Apr 3rd, 2012 @ 3:44pm

    Okay, so let them have termination rights

    So they can't legally transfer the termination rights.

    However, that doesn't change the fact that exercising those termination rights now would be in violation of the contract that they signed in order to get the money in the first place. Remember, the contract never said "you transfer your termination rights away", it said "they wouldn't seek to get anything else from the estate". Therefore, it's perfectly reasonable to consider such an exercise of termination rights to be a breach of contract (despite those rights never having been taken away), and it should be perfectly reasonable for the foundation to ask for all that money back.

     

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  22.  
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    Mike Masnick (profile), Apr 3rd, 2012 @ 3:51pm

    Re: Okay, so let them have termination rights

    However, that doesn't change the fact that exercising those termination rights now would be in violation of the contract that they signed in order to get the money in the first place. Remember, the contract never said "you transfer your termination rights away", it said "they wouldn't seek to get anything else from the estate". Therefore, it's perfectly reasonable to consider such an exercise of termination rights to be a breach of contract (despite those rights never having been taken away), and it should be perfectly reasonable for the foundation to ask for all that money back.

    Not quite. It's not that you can't *transfer* your termination rights, it's that you cannot *give them up* at all. If this contract does succeed in preventing them from enforcing their termination rights, then any and every record label will put a similar clause in their contracts that says "in exchange for this advance, you agree never to seek more... blah blah blah" and then they can claim no termination rights.

    Termination rights can go to a spouse or children and that's basically it. And no one can contractually agree not to exercise them

    Yes, that creates awkward situations like this one, but that's the law.

     

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  23.  
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    Mike Masnick (profile), Apr 3rd, 2012 @ 3:54pm

    Re:

    Why woudl Ray Charles' children have ANY rights to his music.

    We're agreed that the idea of copyright surviving death is stupid.

    He signed an agreement transfering the rights to the record company (most likely for a sizeable amount of money). This is money that the record company INVESTED.

    If it's invested, Charles would have retained the rights. When I get an investment for my company, I still own and run the company, though I give up some equity position. Musicians give up the entirety of their copyrights. That's not an investment, that's a wholesale selling of their rights.

    If anyone has termination rights it should be the record label which purchased the rights.

    I'm afraid you don't seem to comprehend what termination rights are or why they exist. I would suggest doing a little research.

    I personally agree that termination rights are pretty stupid, but you're arguing that record labels should get termination rights from themselves? Huh?

     

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  24.  
    identicon
    MrWilson, Apr 3rd, 2012 @ 8:15pm

    Re: Re: Re: WOW what a POS Ray Charles must have been.

    If you send me your $500,000, I can guarantee that I will be set for life.

     

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  25.  
    identicon
    Anonymous Coward, Apr 3rd, 2012 @ 10:05pm

    If termination 'rights' are non-voidable, how the heck could they get 'transferred' to Ray's children or his neighbors for that matter? If his children or his neighbors can terminate the transferred IP privileges then those copy'rights' get transferred to his children (or neighbor), away from Ray Charles himself, and hence they are transferable. That termination rights aren't voidable should suggest that the IP can't be transferred to his children, or his neighbors, either.

    I can see if Ray Charles himself were to exercise his termination rights, but how could his children or his neighbors exercise something that can't be transferred away from Ray Charles himself?

     

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  26.  
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    Atkray (profile), Apr 3rd, 2012 @ 10:18pm

    What gets me

    is that by simply trying to terminate the rights they get hit with a "give us your inheritance lawsuit".

    I mean its fine that the question of termination rights is confusing so let a judge or 9 figure it out, but for the foundation to come back with oh btw you owe us your inheritances.... well that is messed up.

     

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  27.  
    identicon
    Pseudonym, Apr 3rd, 2012 @ 10:39pm

    Re: Re:

    We're agreed that the idea of copyright surviving death is stupid.

    I disagree. Copyright should have a predictable term. Death can be unpredictable, and there are a few cases in recent history of creators who died before publication or first public performance. Stieg Larsson and Jonathan Larson come to mind, though possibly because they have the same surname. It would be very difficult for the publishers/producers if those works entered the public domain at the moment of death, since death occurred at some point between when the works were first put in tangible form and the date of first publication/performance. This seems contrary to the purpose of copyright.

    It's far more sensible to set a fixed copyright term, starting at the date when the public can first access it. If the creator dies within that fixed term, it shouldn't matter.

     

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  28.  
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    SofaKing (profile), Apr 3rd, 2012 @ 11:26pm

    Re:

    LOL Well played sir!

     

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  29.  
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    PaulT (profile), Apr 4th, 2012 @ 1:07am

    Re: Re: Re: WOW what a POS Ray Charles must have been.

    "When you come across a guaranteed investment that turns 500,000 into "set for life", please let the rest of us know."

    You're kidding, right?

     

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  30.  
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    Mike Masnick (profile), Apr 4th, 2012 @ 1:49am

    Re:

    If termination 'rights' are non-voidable, how the heck could they get 'transferred' to Ray's children or his neighbors for that matter? If his children or his neighbors can terminate the transferred IP privileges then those copy'rights' get transferred to his children (or neighbor), away from Ray Charles himself, and hence they are transferable. That termination rights aren't voidable should suggest that the IP can't be transferred to his children, or his neighbors, either.

    I can see if Ray Charles himself were to exercise his termination rights, but how could his children or his neighbors exercise something that can't be transferred away from Ray Charles himself?


    Who said anything about neighbors?

    If I remember correctly, termination rights can ONLY be exercised by the original creator, their spouse, their children or grandchildren. If *none* of those *exist* then they can be exercised by an estate manager. But if any of them exist, then those are the only ones who can terminate. And that's it. The Foundation cannot terminate. But the children can.

     

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  31.  
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    jsf (profile), Apr 4th, 2012 @ 6:32am

    Re: Re: WOW what a POS Ray Charles must have been.

    $500,000 is nowhere near enough to be set for life. Unless you wish to remain single and live close to poverty for the rest of your life.

    Given average rates of return on conservative investments the best you could expect to get annually is 2%-4%. So that gives you $20,000 per year before taxes.

    But lets say you get a full 10% return after taxes so you have $50,000 per year. That may seem like a decent amount, but it doesn't take into consideration two things. Skyrocketing medical costs and inflation.

    On the medical side of things someone in their 40's or 50's can easily need to pay $10,000 to $12,000 a year for good medical insurance. And this is just for one person. Insuring a family of four as an individual can easily top $20,000 per year.

    On the inflation side, if you follow historic trends, that $50,000 per year will only be worth $40,000 in ten years. In twenty years it will be the equivalent of only $30,000.

    People just don't realize how much money you would really need to live decently for the rest of your life. Most financial planners these days say you need 1 to 2 millions dollars to retire, and that assumes you are also getting medicare and social security.

    So while $500,000 is a nice chunk of change the best it does is by you a nice house these days. It will not support you and your family for the rest of your life. Unless of course you are only going to live another 5 years or so.

     

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  32.  
    identicon
    Anonymous Coward, Apr 4th, 2012 @ 8:31am

    Re: Re:

    Thanks. I didn't know about the children part.

     

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  33.  
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    weneedhelp (profile), Apr 4th, 2012 @ 2:40pm

    Re: Re: Re: Re: WOW what a POS Ray Charles must have been.

    No Paul please enlighten me. The sad fact is that 500,000 is not really that much money these days. I am no financier and really dont see an investment being able to return a guaranteed return of 10% a year. I am 42 now lets say i will live to 92, thats 50 years. You think and initial investment 500,000 will:
    a)last 50 years
    b)return at least 10% a year, guaranteed.

     

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  34.  
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    weneedhelp (profile), Apr 4th, 2012 @ 2:41pm

    Re: Re: Re: Re: WOW what a POS Ray Charles must have been.

    The check is in the mail.

     

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  35.  
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    weneedhelp (profile), Apr 4th, 2012 @ 2:42pm

    Re: Re: WOW what a POS Ray Charles must have been.

    Z I N G !!!!

     

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  36.  
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    wvhillbilly (profile), Apr 4th, 2012 @ 2:43pm

    Re: Re:

    Didn't you hear? All copyrights are now forever?

    Way back in 1979 when they changed the copyright law, they retroactively extended all existing copyrights to life + 50 years from their original date of copyright, or some such. Then along came the Sonny Bono copyright extension just as Dizney's copyright on Micky mouse was about to expire, making everything copyright for an extra 20 years, and with today's corpocracy controlling everything from electrons to galaxies we can expect it to get extended again every time some big corporate copyright is about to expire.

    So forget about the public domain. All you have in there is stuff whose copyrights expired before 1979 or whenever the law was changed. And if the copyright maximilists have their way, they'll see to it that they will recapture everything in the public domain all the way back to Julius Caesar, and in any event see to it that nothing currently under copyright ever does enter the public domain. Unless someone willingly donates something to it.

    [sarcasm]

     

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  37.  
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    PaulT (profile), Apr 5th, 2012 @ 1:03am

    Re: Re: Re: Re: Re: WOW what a POS Ray Charles must have been.

    Ah, you see you're just thinking of return, figures and all that crap, along with the assumption of retirement and a long life with only that money as income... perhaps it's a matter of perspective.

    With 500k, I could pay off all debt and own my property outright (so that most of my monthly outgoings disappear), and chase a few dreams while still having plenty (more than half) left over to invest. Sure, I wouldn't be able to retire and live like a king, but I wouldn't piss it away in 8 years either. The rest of my life would be guaranteed to be far more comfortable than my current future.

    I suppose it depends on what you mean by "set for life", but $500k is plenty for most people - that's more than 10 years income if you earn the median wage in the US. You wouldn't be able to do everything you'd like with that money, or quit your job to live in a palatial mansion, but you'll be pretty well off if you don't squander it or demand a lifestyle beyond it. Most people would be quite happy with that.

     

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  38.  
    identicon
    vladimir, Mar 5th, 2013 @ 11:42am

    Re: WOW what a POS Ray Charles must have been.

    Because they would trash his legacy and sell his music to the highest bidder.
    Maybe he is trying to teach his children to work hard and earn a living instead of feeling entitled to his life work.

    They should blame their moms who slept with Ray Charles knowing that he was married. I am willing to bet that these women went out of their way to get pregnant.

     

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  39.  
    identicon
    CitySide Records, Jul 4th, 2013 @ 12:15am

    Adams and Ray's Children

    First off these children must know they have some rights to be fighting for or else they wouldn't be. 2nd let all of us know to ourselves that we don't know what deal was cut with Ray and his children so we can't judge em. also it wasn't the foundation who gave the children the money it was Ray himself from what the Reverend (his son) states.
    Third that guy Adams is old as dust so what could he possibly do with the money, apparently he was a money hungry person and control freak because all the people that worked with the foundation was fired or quit after Ray died..hmmmm strange. so if Mr.Adams die..then who runs things...??? Adam's kids or grand kids? I do music and have over 185 songs in my music catalog and I wouldn't left all to a foundation when i have 12 kids, that sounds like a dead beat dad to me, i would give the rights half to the kids and half to the foundation. Ray was a smart businessman who got 100% of his masters and 75 cent on a dollar, why would he rip his kids off. Now what i would've done was had them work the music catalog or even work in the foundation and if they didn't then they would forfeit their rights. remember they had the meeting for a reason and last but not least..............Know that the other two children wasn't even in the meeting so what type of deal or money did they get and i don't think they would scrap over their dad's money huh they didn't even know each other well as brothers and sisters but they now are fighting for what's right together.

     

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