Larry Rohter
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 US 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 unauthorised downloading of music on the Internet, especially of new releases, which has left record labels disproportionately dependent on sales of older recordings.
?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 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.
Congress passed the copyright law in 1976, specifying that it would go into effect on January 1, 1978, meaning that the earliest any recording can be reclaimed is January 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 struggle that is now going on.
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.