Hardrock69
08-17-2011, 03:59 PM
Even more proof that the RIAA wants to ass-rape every musician it can.
One question Have seen brought up again and again: When they go after people who are infringing on copyrighted music, and win huge financial penalties in court, does any of that money go to the artists who created or recorded the work? HELL NO!
This case involves the rights to claim ownership of the master tapes:
http://www.techdirt.com/articles/20110816/09574115549/dear-musicians-riaa-is-about-to-totally-screw-you-over-again.shtml
Dear Musicians: The RIAA Is About To Totally Screw You Over (Again!)
from the watch-for-it... dept
It's been two years since we first warned of the pending fight concerning musicians asserting their copyright termination rights. As you hopefully know by now, copyright law includes a "termination right," which cannot be contractually given up, which allows the original content creator to "reclaim" the copyright on their works 35 years after it was created. The only real exception is in cases where the work qualifies as "work for hire." I'm actually not a huge fan of termination rights in the first place for a variety of reasons, but the fact is that they're there... and they scare the entertainment industry silly.
The big legal fights so far have mostly been about the comic book industry, with the heirs of Superman's creators having won back some rights to Superman -- while Jack Kirby's heirs failed to win back the rights to The Incredible Hulk and X-Men. Kirby's family just appealed and there are still additional disputes around the Superman stuff.
However, the real showdown is about the music industry. The NY Times has an article about the impending battle, which has a variety of interesting tidbits, but none more ridiculous than the RIAA officially making it clear that it intends to totally screw over musicians. As we made clear two years ago when we wrote about this, the RIAA was going to come out fighting to try to block what the law clearly allows, and will do everything it can to screw over artists and keep them from regaining their own copyrights.
“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.
First, this may be the first time the mainstream media has accurately pointed out that the RIAA represents the "interests of the record labels" rather than the interests of the music industry or musicians. As is clear in this case, the RIAA's interests are diametrically opposed to the interests of artists, and the fact that Marks has the gall to flat out say that termination rights don't apply to most sound recordings is so intellectually dishonest.
The RIAA knows full well that termination rights absolutely do apply to most sound recordings. To be fair, this is mostly an accident of history. As was detailed in an excellent IP Colloquium episode last summer all about termination rights, what got covered and what didn't basically depended on who was in the room and who was more aggressive in their lobbying. Nine "work-for-hire" exceptions were put into the law. It doesn't make much sense which ones made it and which didn't, but that's lobbying for you.
However, the reason we know that the RIAA is fully aware of the fact that copyright termination does apply to most sound recordings is because a dozen years ago, recognizing that this was going to become an issue, the RIAA famously had a small time Congressional staffer by the name of Mitch Glazier sneak four innocuous looking words in the middle of a totally unrelated bill to quietly and retroactively have sound recordings declared "works for hire." This literally happened overnight with no elected officials who were voting on the bill being made aware of it.
Once that became public, artists (quite reasonably) freaked out and went very, very public about how the RIAA was totally screwing them over. It's one of the few times in history when Congress actually went against the RIAA, removing the language soon after it was approved. Of course, the guy who slipped the language in, Mitch Glazier, came out of this fine. Just three months after putting in that language, he was hired by the RIAA at a $500,000 per year salary, and he's just been promoted to the number two spot at the RIAA.
If you ever needed any more evidence that the RIAA is entirely anti-artist, this is it. It's put the guy who tried to take away their right to regain copyrights in the number 2 spot just weeks before out and out declaring that the organization simply doesn't believe sound recordings qualify for termination rights.
So, since they know damn well that sound recordings do qualify for termination rights, how are they going to claim otherwise? They may (as the NY Times article suggests) try to rely on last year's ruling concerning Bob Marley's recordings, in which they were declared "work for hire" and his family was unable to reclaim the copyright. But that's a different story, as those recordings happened prior to the rules of the 1976 Copyright Act, so the ruling really doesn't apply.
Instead, my bet is they're going to lean heavily on a Second Circuit Appeals Court ruling from last year, which claimed that an album is a single compilation for the purposes of copyright law. That matters, because while "sound recordings" are not covered as a "work for hire," "compilations" are. Of course, the obvious intent of including "compilations" was based on the realization that if multiple people contribute pieces to a larger whole compilation, separating out those rights later under termination laws would be freakishly impossible. Thus it was just easier to label the entire compilation as held by the producer. But a single album by a single artist clearly is not a compilation in that sense, despite the RIAA's claim above.
Other than that, the only way the RIAA can make a work for hire claim stick is to say that musicians were employees who created the music "within the scope of his or her employment." That, obviously, is completely laughable, since the labels don't hire musicians, nor do they pay them salaries. In fact, while they give them "advances," those are merely a form of loan that the artists have to pay back out of their own earnings. So the labels aren't even paying for the music creation.
Either way, it's pretty stunning that the RIAA has so blatantly declared war on artists. I'm somewhat surprised that more musicians aren't speaking out about this, but it's going to happen. No wonder the RIAA is so desperate to get things like PROTECT IP passed now, before this next battle comes to fruition. Once you have a bunch of big name musicians going very public about how the RIAA is screwing them over, it's going to be increasingly difficult for the RIAA to keep up the facade about how it's representing the interests of musicians while it's actively and vocally trying to totally screw them over.
And, here is an article referenced in the above article:
http://www.nytimes.com/2011/08/16/arts/music/springsteen-and-others-soon-eligible-to-recover-song-rights.html?_r=3&pagewanted=all
Record Industry Braces for Artists’ Battles Over Song Rights
By LARRY ROHTER
Published: August 15, 2011
Since their release in 1978, hit albums like Bruce Springsteen’s “Darkness on the Edge of Town,” Billy Joel’s “52nd Street,” the Doobie Brothers’ “Minute by Minute,” Kenny Rogers’s “Gambler” and Funkadelic’s “One Nation Under a Groove” have generated tens of millions of dollars for record companies. But thanks to a little-noted provision in United States copyright law, those artists — and thousands more — now have the right to reclaim ownership of their recordings, potentially leaving the labels out in the cold.
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 — and then, as the calendar advances, every other master recording once it reaches the 35-year mark.
The provision also permits songwriters to reclaim ownership of qualifying songs. Bob Dylan has already filed to regain some of his compositions, as have other rock, pop and country performers like Tom Petty, Bryan Adams, Loretta Lynn, Kris Kristofferson, Tom Waits and Charlie Daniels, according to records on file at the United States Copyright Office.
“In terms of all those big acts you name, the recording industry has made a gazillion dollars on those masters, more than the artists have,” said Don Henley, a founder both of the Eagles and the Recording Artists Coalition, which seeks to protect performers’ legal rights. “So there’s an issue of parity here, of fairness. This is a bone of contention, and it’s going to get more contentious in the next couple of years.”
With the recording industry already reeling from plummeting sales, termination rights claims could be another serious financial blow. Sales plunged to about $6.3 billion from $14.6 billion over the decade ending in 2009, in large part because of unauthorized downloading of music on the Internet, especially of new releases, which has left record labels disproportionately dependent on sales of older recordings in their catalogs.
“This is a life-threatening change for them, the legal equivalent of Internet technology,” said Kenneth J. Abdo, a lawyer who leads a termination rights working group for the National Academy of Recording Arts and Sciences and has filed claims for some of his clients, who include Kool and the Gang. As a result the four major record companies — Universal, Sony BMG, EMI and Warner — have made it clear that they will not relinquish recordings they consider their property without a fight.
“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.
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.”
Daryl Friedman, the Washington representative of the recording academy, which administers the Grammy Awards and is allied with the artists’ position, expressed hope that negotiations could lead to a “broad consensus in the artistic community, so there don’t have to be 100 lawsuits.” But with no such talks under way, lawyers predict that the termination rights dispute will have to be resolved in court.
“My gut feeling is that the issue could even make it to the Supreme Court,” said Lita Rosario, an entertainment lawyer specializing in soul, funk and rap artists who has filed termination claims on behalf of clients, whom she declined to name. “Some lawyers and managers see this as an opportunity to go in and renegotiate a new and better deal. But I think there are going to be some artists who feel so strongly about this that they are not going to want to settle, and will insist on getting all their rights back.”
So far the only significant ruling on the issue has been one in the record labels’ favor. In that suit heirs of Jamaican reggae star Bob Marley, who died in 1981, sued Universal Music to regain control of and collect additional royalties on five of his albums, which included hits like “Get Up, Stand Up” and “One Love.”
But last September a federal district court in New York ruled that “each of the agreements provided that the sound recordings were the ‘absolute property’ ” of the record company, and not Marley or his estate. That decision, however, applies only to Marley’s pre-1978 recordings, which are governed by an earlier law that envisaged termination rights only in specific circumstances after 56 years, and it is being appealed.
Congress passed the copyright law in 1976, specifying that it would go into effect on Jan. 1, 1978, meaning that the earliest any recording can be reclaimed is Jan. 1, 2013. But artists must file termination notices at least two years before the date they want to recoup their work, and once a song or recording qualifies for termination, its authors have five years in which to file a claim; if they fail to act in that time, their right to reclaim the work lapses.
The legislation, however, fails to address several important issues. Do record producers, session musicians and studio engineers also qualify as “authors” of a recording, entitled to a share of the rights after they revert? Can British groups like Led Zeppelin, the Rolling Stones, Pink Floyd, and Dire Straits exercise termination rights on their American recordings, even if their original contract was signed in Britain? These issues too are also an important part of the quiet, behind-the-scenes struggle that is now going on.
Given the potentially huge amounts of money at stake and the delicacy of the issues, both record companies, and recording artists and their managers have been reticent in talking about termination rights. The four major record companies either declined to discuss the issue or did not respond to requests for comment, referring the matter to the industry association.
But a recording industry executive involved in the issue, who spoke on condition of anonymity because he is not authorized to speak for the labels, said that significant differences of opinion exist not only between the majors and smaller independent companies, but also among the big four, which has prevented them from taking a unified position. Some of the major labels, he said, favor a court battle, no matter how long or costly it might be, while others worry that taking an unyielding position could backfire if the case is lost, since musicians and songwriters would be so deeply alienated that they would refuse to negotiate new deals and insist on total control of all their recordings.
As for artists it is not clear how many have already filed claims to regain ownership of their recordings. Both Mr. Springsteen and Mr. Joel, who had two of the biggest hit albums of 1978, as well as their managers and legal advisers, declined to comment on their plans, and the United States Copyright Office said that, because termination rights claims are initially processed manually rather than electronically, its database is incomplete.
Songwriters, who in the past typically have had to share their rights with publishing companies, some of which are owned by or affiliated with record labels, have been more outspoken on the issue. As small independent operators to whom the work for hire argument is hard to apply, the balance of power seems to have tilted in their favor, especially if they are authors of songs that still have licensing potential for use on film and television soundtracks, as ringtones, or in commercials and video games.
“I’ve had the date circled in red for 35 years, and now it’s time to move,” said Rick Carnes, who is president of the Songwriters Guild of America and has written hits for country artists like Reba McEntire and Garth Brooks. “Year after year after year you are going to see more and more songs coming back to songwriters and having more and more influence on the market. We will own that music, and it’s still valuable.”
In the absence of a definitive court ruling, some recording artists and their lawyers are talking about simply exercising their rights and daring the record companies to stop them. They complain that the labels in some cases are not responding to termination rights notices and predict that once 2013 arrives, a conflict that is now mostly hidden from view is likely to erupt in public.
“Right now this is kind of like a game of chicken, but with a shot clock,” said Casey Rae-Hunter, deputy director of the Future of Music Coalition, which advocates for musicians and consumers. “Everyone is adopting a wait-and-see posture. But that can only be maintained for so long, because the clock is ticking.”
One question Have seen brought up again and again: When they go after people who are infringing on copyrighted music, and win huge financial penalties in court, does any of that money go to the artists who created or recorded the work? HELL NO!
This case involves the rights to claim ownership of the master tapes:
http://www.techdirt.com/articles/20110816/09574115549/dear-musicians-riaa-is-about-to-totally-screw-you-over-again.shtml
Dear Musicians: The RIAA Is About To Totally Screw You Over (Again!)
from the watch-for-it... dept
It's been two years since we first warned of the pending fight concerning musicians asserting their copyright termination rights. As you hopefully know by now, copyright law includes a "termination right," which cannot be contractually given up, which allows the original content creator to "reclaim" the copyright on their works 35 years after it was created. The only real exception is in cases where the work qualifies as "work for hire." I'm actually not a huge fan of termination rights in the first place for a variety of reasons, but the fact is that they're there... and they scare the entertainment industry silly.
The big legal fights so far have mostly been about the comic book industry, with the heirs of Superman's creators having won back some rights to Superman -- while Jack Kirby's heirs failed to win back the rights to The Incredible Hulk and X-Men. Kirby's family just appealed and there are still additional disputes around the Superman stuff.
However, the real showdown is about the music industry. The NY Times has an article about the impending battle, which has a variety of interesting tidbits, but none more ridiculous than the RIAA officially making it clear that it intends to totally screw over musicians. As we made clear two years ago when we wrote about this, the RIAA was going to come out fighting to try to block what the law clearly allows, and will do everything it can to screw over artists and keep them from regaining their own copyrights.
“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.
First, this may be the first time the mainstream media has accurately pointed out that the RIAA represents the "interests of the record labels" rather than the interests of the music industry or musicians. As is clear in this case, the RIAA's interests are diametrically opposed to the interests of artists, and the fact that Marks has the gall to flat out say that termination rights don't apply to most sound recordings is so intellectually dishonest.
The RIAA knows full well that termination rights absolutely do apply to most sound recordings. To be fair, this is mostly an accident of history. As was detailed in an excellent IP Colloquium episode last summer all about termination rights, what got covered and what didn't basically depended on who was in the room and who was more aggressive in their lobbying. Nine "work-for-hire" exceptions were put into the law. It doesn't make much sense which ones made it and which didn't, but that's lobbying for you.
However, the reason we know that the RIAA is fully aware of the fact that copyright termination does apply to most sound recordings is because a dozen years ago, recognizing that this was going to become an issue, the RIAA famously had a small time Congressional staffer by the name of Mitch Glazier sneak four innocuous looking words in the middle of a totally unrelated bill to quietly and retroactively have sound recordings declared "works for hire." This literally happened overnight with no elected officials who were voting on the bill being made aware of it.
Once that became public, artists (quite reasonably) freaked out and went very, very public about how the RIAA was totally screwing them over. It's one of the few times in history when Congress actually went against the RIAA, removing the language soon after it was approved. Of course, the guy who slipped the language in, Mitch Glazier, came out of this fine. Just three months after putting in that language, he was hired by the RIAA at a $500,000 per year salary, and he's just been promoted to the number two spot at the RIAA.
If you ever needed any more evidence that the RIAA is entirely anti-artist, this is it. It's put the guy who tried to take away their right to regain copyrights in the number 2 spot just weeks before out and out declaring that the organization simply doesn't believe sound recordings qualify for termination rights.
So, since they know damn well that sound recordings do qualify for termination rights, how are they going to claim otherwise? They may (as the NY Times article suggests) try to rely on last year's ruling concerning Bob Marley's recordings, in which they were declared "work for hire" and his family was unable to reclaim the copyright. But that's a different story, as those recordings happened prior to the rules of the 1976 Copyright Act, so the ruling really doesn't apply.
Instead, my bet is they're going to lean heavily on a Second Circuit Appeals Court ruling from last year, which claimed that an album is a single compilation for the purposes of copyright law. That matters, because while "sound recordings" are not covered as a "work for hire," "compilations" are. Of course, the obvious intent of including "compilations" was based on the realization that if multiple people contribute pieces to a larger whole compilation, separating out those rights later under termination laws would be freakishly impossible. Thus it was just easier to label the entire compilation as held by the producer. But a single album by a single artist clearly is not a compilation in that sense, despite the RIAA's claim above.
Other than that, the only way the RIAA can make a work for hire claim stick is to say that musicians were employees who created the music "within the scope of his or her employment." That, obviously, is completely laughable, since the labels don't hire musicians, nor do they pay them salaries. In fact, while they give them "advances," those are merely a form of loan that the artists have to pay back out of their own earnings. So the labels aren't even paying for the music creation.
Either way, it's pretty stunning that the RIAA has so blatantly declared war on artists. I'm somewhat surprised that more musicians aren't speaking out about this, but it's going to happen. No wonder the RIAA is so desperate to get things like PROTECT IP passed now, before this next battle comes to fruition. Once you have a bunch of big name musicians going very public about how the RIAA is screwing them over, it's going to be increasingly difficult for the RIAA to keep up the facade about how it's representing the interests of musicians while it's actively and vocally trying to totally screw them over.
And, here is an article referenced in the above article:
http://www.nytimes.com/2011/08/16/arts/music/springsteen-and-others-soon-eligible-to-recover-song-rights.html?_r=3&pagewanted=all
Record Industry Braces for Artists’ Battles Over Song Rights
By LARRY ROHTER
Published: August 15, 2011
Since their release in 1978, hit albums like Bruce Springsteen’s “Darkness on the Edge of Town,” Billy Joel’s “52nd Street,” the Doobie Brothers’ “Minute by Minute,” Kenny Rogers’s “Gambler” and Funkadelic’s “One Nation Under a Groove” have generated tens of millions of dollars for record companies. But thanks to a little-noted provision in United States copyright law, those artists — and thousands more — now have the right to reclaim ownership of their recordings, potentially leaving the labels out in the cold.
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 — and then, as the calendar advances, every other master recording once it reaches the 35-year mark.
The provision also permits songwriters to reclaim ownership of qualifying songs. Bob Dylan has already filed to regain some of his compositions, as have other rock, pop and country performers like Tom Petty, Bryan Adams, Loretta Lynn, Kris Kristofferson, Tom Waits and Charlie Daniels, according to records on file at the United States Copyright Office.
“In terms of all those big acts you name, the recording industry has made a gazillion dollars on those masters, more than the artists have,” said Don Henley, a founder both of the Eagles and the Recording Artists Coalition, which seeks to protect performers’ legal rights. “So there’s an issue of parity here, of fairness. This is a bone of contention, and it’s going to get more contentious in the next couple of years.”
With the recording industry already reeling from plummeting sales, termination rights claims could be another serious financial blow. Sales plunged to about $6.3 billion from $14.6 billion over the decade ending in 2009, in large part because of unauthorized downloading of music on the Internet, especially of new releases, which has left record labels disproportionately dependent on sales of older recordings in their catalogs.
“This is a life-threatening change for them, the legal equivalent of Internet technology,” said Kenneth J. Abdo, a lawyer who leads a termination rights working group for the National Academy of Recording Arts and Sciences and has filed claims for some of his clients, who include Kool and the Gang. As a result the four major record companies — Universal, Sony BMG, EMI and Warner — have made it clear that they will not relinquish recordings they consider their property without a fight.
“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.
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.”
Daryl Friedman, the Washington representative of the recording academy, which administers the Grammy Awards and is allied with the artists’ position, expressed hope that negotiations could lead to a “broad consensus in the artistic community, so there don’t have to be 100 lawsuits.” But with no such talks under way, lawyers predict that the termination rights dispute will have to be resolved in court.
“My gut feeling is that the issue could even make it to the Supreme Court,” said Lita Rosario, an entertainment lawyer specializing in soul, funk and rap artists who has filed termination claims on behalf of clients, whom she declined to name. “Some lawyers and managers see this as an opportunity to go in and renegotiate a new and better deal. But I think there are going to be some artists who feel so strongly about this that they are not going to want to settle, and will insist on getting all their rights back.”
So far the only significant ruling on the issue has been one in the record labels’ favor. In that suit heirs of Jamaican reggae star Bob Marley, who died in 1981, sued Universal Music to regain control of and collect additional royalties on five of his albums, which included hits like “Get Up, Stand Up” and “One Love.”
But last September a federal district court in New York ruled that “each of the agreements provided that the sound recordings were the ‘absolute property’ ” of the record company, and not Marley or his estate. That decision, however, applies only to Marley’s pre-1978 recordings, which are governed by an earlier law that envisaged termination rights only in specific circumstances after 56 years, and it is being appealed.
Congress passed the copyright law in 1976, specifying that it would go into effect on Jan. 1, 1978, meaning that the earliest any recording can be reclaimed is Jan. 1, 2013. But artists must file termination notices at least two years before the date they want to recoup their work, and once a song or recording qualifies for termination, its authors have five years in which to file a claim; if they fail to act in that time, their right to reclaim the work lapses.
The legislation, however, fails to address several important issues. Do record producers, session musicians and studio engineers also qualify as “authors” of a recording, entitled to a share of the rights after they revert? Can British groups like Led Zeppelin, the Rolling Stones, Pink Floyd, and Dire Straits exercise termination rights on their American recordings, even if their original contract was signed in Britain? These issues too are also an important part of the quiet, behind-the-scenes struggle that is now going on.
Given the potentially huge amounts of money at stake and the delicacy of the issues, both record companies, and recording artists and their managers have been reticent in talking about termination rights. The four major record companies either declined to discuss the issue or did not respond to requests for comment, referring the matter to the industry association.
But a recording industry executive involved in the issue, who spoke on condition of anonymity because he is not authorized to speak for the labels, said that significant differences of opinion exist not only between the majors and smaller independent companies, but also among the big four, which has prevented them from taking a unified position. Some of the major labels, he said, favor a court battle, no matter how long or costly it might be, while others worry that taking an unyielding position could backfire if the case is lost, since musicians and songwriters would be so deeply alienated that they would refuse to negotiate new deals and insist on total control of all their recordings.
As for artists it is not clear how many have already filed claims to regain ownership of their recordings. Both Mr. Springsteen and Mr. Joel, who had two of the biggest hit albums of 1978, as well as their managers and legal advisers, declined to comment on their plans, and the United States Copyright Office said that, because termination rights claims are initially processed manually rather than electronically, its database is incomplete.
Songwriters, who in the past typically have had to share their rights with publishing companies, some of which are owned by or affiliated with record labels, have been more outspoken on the issue. As small independent operators to whom the work for hire argument is hard to apply, the balance of power seems to have tilted in their favor, especially if they are authors of songs that still have licensing potential for use on film and television soundtracks, as ringtones, or in commercials and video games.
“I’ve had the date circled in red for 35 years, and now it’s time to move,” said Rick Carnes, who is president of the Songwriters Guild of America and has written hits for country artists like Reba McEntire and Garth Brooks. “Year after year after year you are going to see more and more songs coming back to songwriters and having more and more influence on the market. We will own that music, and it’s still valuable.”
In the absence of a definitive court ruling, some recording artists and their lawyers are talking about simply exercising their rights and daring the record companies to stop them. They complain that the labels in some cases are not responding to termination rights notices and predict that once 2013 arrives, a conflict that is now mostly hidden from view is likely to erupt in public.
“Right now this is kind of like a game of chicken, but with a shot clock,” said Casey Rae-Hunter, deputy director of the Future of Music Coalition, which advocates for musicians and consumers. “Everyone is adopting a wait-and-see posture. But that can only be maintained for so long, because the clock is ticking.”