We've talked plenty about the coming legal battles over "termination rights"
in various works. If you're not familiar with it, under the 1976 Copyright Act, content creators have a guaranteed right
to terminate any copyright assignments after 35 years. That is, if a musician assigned the copyright to a label, as is standard, they can take that copyright back after 35 years. This is not a right that an artist can give up. Even if they sign a contract saying they give up their termination rights, it doesn't matter. Those rights cannot be taken away from the artist under the law. The exception
to termination rights, however, is if a work is classified as a "work made for hire." However, the definition
of what qualifies as a work made for hire is very, very narrow:
A “work made for hire” is--
(1) a work prepared by an employee within the scope of his or her employment; or
(2) a work specially ordered or commissioned for use as a contribution to a collective work, as a part of a motion picture or other audiovisual work, as a translation, as a supplementary work, as a compilation, as an instructional text, as a test, as answer material for a test, or as an atlas, if the parties expressly agree in a written instrument signed by them that the work shall be considered a work made for hire. For the purpose of the foregoing sentence, a “supplementary work” is a work prepared for publication as a secondary adjunct to a work by another author for the purpose of introducing, concluding, illustrating, explaining, revising, commenting upon, or assisting in the use of the other work, such as forewords, afterwords, pictorial illustrations, maps, charts, tables, editorial notes, musical arrangements, answer material for tests, bibliographies, appendixes, and indexes, and an “instructional text” is a literary, pictorial, or graphic work prepared for publication and with the purpose of use in systematic instructional activities.
There are a lot of specific conditions there. If you're wondering how such an odd list was put together, some have suggested it was basically just who was in the room
. Somewhat surprisingly, one of the main parties who apparently wasn't in the room were the major record labels. Notice that sound recordings aren't there, and you'd have to stretch the definition mightily to cover sound recordings. Of course, the labels have been freaking out about this for decades. Famously, back in 1999, Mitch Glazier, a Congressional staffer, snuck some language
into a totally unrelated law about satellites to make sound recordings count as work for hire too. He allegedly did this in the middle of the night such that no one -- even the "authors" of the bill -- knew it was there until after the bill passed. This one time, the outcry (especially from musicians) was so loud, that Congress had to go back and repeal that section. Of course, by then, Glazier had jumped ship to a job at the RIAA making about half a million dollars. He's still at the RIAA where he's now the second in command. Remember that the next time anyone pretends the RIAA is about helping artists. Their number two guy tried to screw artists out of their copyrights.
Of course, that hasn't stopped the efforts by the record labels to still pretend that the copyrights they hold are "works made for hire." They've been testing out a few legal theories, none of which seem very strong, but many of which will soon be tested in court. Why now? While there have been a few lawsuits over this (especially in the comic book space), the key aspect of termination rights came into effect in 1978, with that 35 year window. 35 years after 1978 is... 2013. So, a battle is shaping up.
Michael Robertson, who has been involved in a long term legal fight
with EMI, is calling attention to the fact that EMI seems to be trying to just declare that music made by bands signed to its labels are works made for hire
. How are they doing this? Well, just by declaring
that the songs are "made for hire" on the copyright registration. You can see one example of that on a Billy Idol copyright registration embedded below. But, simply declaring it as a work made for hire on the copyright registration is totally meaningless
. It doesn't mean the work hits any of the qualifications under the law.
The RIAA has been trying to claim
that any albums are really a "compilation" so they qualify as a "collective work" under the law, which does create a work-for-hire situation. But there are other conditions that need to be met, and it's unclear if those have been. Plus, the claim that an album is a "collective work" is a pretty weak one all around.
Either way, many artists probably don't even recognize that their works have been designated this way (or even what it means), so Robertson has been putting together a big list, and seeking artists on that list to proactively challenge the claims, rather than waiting until the 35-year window hits. There are some pretty big names on the list he's dug up already -- including the Beatles, the Beastie Boys, the Beach Boys, The Rolling Stones, Billy Idol, Coldplay, David Bowie, Duran Duran, Frank Sinatra, Iggy Pop, Janet Jackson, John Lennon, Katy Perry, Pink Floyd, Radiohead, Smashing Pumpkins and many, many more. Robertson is hoping at least someone on the list will go legal and claim their own works:
What I'm looking for is an artist who has the courage to stand up on this issue and claim their works, laying the groundwork for them and ALL artists who share their plight to take ownership in the near future and escape this slavery. (Rather like Curt Flood did battling to get free agency for baseball players: See The Curious Case of Curt Flood which should have been called the Courage Case of Curt Flood.)
Of course, some of this may get sorted out by the long list of coming lawsuits for those artists who have actually begun the process of trying to terminate the copyright assignment, starting with The Village People (though that's a weaker case, since the band itself was put together by the label). Either way, it's pretty ridiculous to see how far the labels are going to try to deny artists the ability to take back their copyrights, despite the law being pretty clear that they have that right.