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In Reply to: Welcome to the New Outside posted by Bruce from DC on June 26, 2000 at 08:01:22:
discussion about these changes to the Copyright Act.As I understand it, section 203 of the '76 Act allowed an author to reclaim copyright in a work during a five years term beginning 35 years from the grant of the copyright (see section (3)), where the work was contolled by a contract provision.
The example we discussed in law school was the poor artist that had a bad contract and never sees a penny of royalties in the 35 year span. After 35 years there is a window to reclaim control of the copyright, and perhaps make a little on it.
OK, now the beginning of section 203 starts with "In the case of any work other than a work for hire" and I believe it was this provision that is causing the problem, because a recent bill passed and signed by Clinton makes the studios/producers the authors under the "work for hire" definition.
In other words, when a musician works under contract, there is no original copyright in the work that inheres to the artist, because under the law the artist is no longer the author, the person that "hired" the work is. Now, this has far ranging consequences, because esentially all artists are creating works for hire if they are under a contract, and its gonna be a mess when it starts to be litigated. Who the hell started this mess? Do studios really have a lobby this strong? I am a musician myself, and I think this stinks. Do we all need to buy cheap home studio equipment and distribute via MP3 to keep our rights? This certainly forces independent distribution doesn't it, who wants a contrct with these conditions. I cannot get over how stupid the music industry continues to prove itself to be; as technology allows, we will put them out of business for their greed and usury. Just watch us.
mad-as-hell gen-x'er
This most definitely is NOT my area of expertise, Paul.If I had to guess, I would guess the software people are behind this more than the music people. Here's my hypothesis: as you know, job mobility among computer folks is very high. A huge and continuing problem for the industry is retaining control/ownership of the IP that is developed by employees. Problem is employees leave, and the IP is in their heads, and it goes somewhere else. So, there's a need to strenghten the work for hire concept, including eliminating the reversionary right.
I assume that works, whatever they are, can be owned in about 3 different ways:
1. The artist is a full-time employee of a company and he creates this work as part of his duties as an employee.
2. The artist is under contract for someone to create a work and he creates this work in performance of his obligations under the contract.
3. The artist is self-supporting, and he creates the work first. Then he gets someone to publish it for him or to record it for him and distribute the recording.
I think examples 1 and 2 are clearly "works for hire" and, in both cases, the employer is assuming the risk that the works will have any value. Example 3 is not a work for hire.
But the problem is that, all of this can be varied by contract; and we have artists venturing into a fairly complicated legal situation (copyright law ain't simple) who are poorly advised -- if at all -- with a well-advised studio or record company sitting across the table from them. Who knows how that's going to turn out?The best answer, of course, is "give that starving artist a better lawyer." That's unrealistic, of course. The next best answer is to start to fence in the ability of the parties to contract. So, we could say that a "work for hire" can only be created in one of two different situations: (1) where the author is a full-time employee of a business and is on a salary or (2) where the author contracts to create that specific work for a definite price. But, there might be a reason why it's socially useful to permit an artist to sell more than this, in some circumstances . . .
But I can't imagine that every piece of music that is recorded by a studio becomes the work for hire of the studio. The performance of that piece that is fixed in the recording, maybe. Am I wrong . . . ?
Yes, I think that the master tape IS the issue. It isnt too good to lose the copyright in the "original work of authorship, fixed in a tangible medium" where the tangible medium is the the master tape. The artist then cant recover the master tape to make any money on it. I spent all morning trying to find something online, and I did find some tetimony on point. Amazingly, I managed to actually get the sections right, even though I only saw a blurb on this a few months ago; it amazes me that others arent discussing this. Anyway, I haven't read it all yet, but see what you think if you have time to read this. I think we who care about content should all be concerned for the artists, this is a bad deal done in the most repugnant backdoor manner.
but only one time thru.
It does not seem to me to be the great rape of musicians that you describe. Rather, it is a response to a problem created by the "termination rights" created under the '76 Act. However, like all other legal changes, this one is not without other potentially harmful consequences, which the Register's testimony points out. Certainly, she is correct in that this is not a "technical" amendment (i.e. one that does not require thought) and she is correct that a better balance needs to be struck between the artists and the record companies. But look at her solution! (Not that I can think of a better one, off hand.) We're going to have "key artists" who get to have termination rights, but not everybody. Who are they? Well, the members of the band and the headliners. Ok, so far. But maybe some of the producers, if we're talking in the leagues of Phil Spector or Quincy Jones. I feel a slippery slope approaching quickly here as we encounter some no-name producer who turns out to be a Phil Spector and wants a piece of the action. We're going to leave out the studio musicians. Too bad for them. We'll, you're a little young for this and it may not be to your taste, but go back and dig up some classic Motown recordings from the 60s. Crank up your subwoofer and listen to the bass player. Especially, get your hands on the Four Tops recording of "Bernadette." Now, tell me, have you ever -- before or since -- heard a rock bass player play like that? Certainly not Paul McCartney. This -- I don't know how else to describe it -- "baroque" bass line is part of what made the "Motown Sound." The bass player died within the past two years. Should we leave him off the list of "key players" with termination rights? My only point is that this ain't easy.Re the process. I hate to break it to you, but this is par for the course here in DC. The SHVA, to which this was appended, is something I do know something about, since it primarily involves the television business: broadcast, cable and satellite. Basically, SHVA allows direct broadcast satellite companies, like DirecTV, to rebroadcast the signals of local TV stations into those stations' home markets via satellite. Before that, only people in the sticks were permitted to get re-broadcast network TV signals from the satellite. Because viewers apparently are unwilling to switch their sets from off-air reception of local TV signals to the satellite receiver, this makes DirecTV and similar services much more appealing to urban and suburban viewers. The legislation was precipitated by lawsuits the networks brought against satellite programmers who were cheating on persons to whom they were delivering broadcast network signals. This had major competitive consequences for broadcast TV, cable and the satellite companies. So the record companies slipped one in, calling it a technical amendment. I suspect some high-profile lobbying by major recording artists will take care of the problem. Just look at what similar lobbying by famous directors did with respect to the re-formatting and cutting of movies shown on airplanes and broadcast TV.
just trying to get people to pay attention to an aspect of the music industry that seems overlooked, but could have a large impact. Although, it wouldn't hurt these guys to stretch their minds a bit by reading some legal material that is a bit more challenging than a magazine. ;)Read that link dammit, I think you will be very surprised what the music industry lobby got away with.
Don't quit on my account Paul. I just used your legal posts as an example. Actually they're no more boring than the endless discussion of the price of gas in Spain. Whatever turns your crank.I come here to see witty, blooded battles over audio and personalities. Threads about real life are just punctuations between the hot action bouts.
Sometimes I rent Ultimate Fighting Challenge videos. I especially love to see Tank Abbott getting beat up.
Dan
Pay was too low.
I can't watch Gerry Springer. Too scary!Hey, did you know he's a lawyer? I think his is the perfect job for someone with training in the adverserial legal system. The point of the Gerry Springer show is to provoke and intensify conflict. And that is exactly what I've experienced every time a lawyer gets involved in my personal or business life. I've noticed that parties immediately start to move apart as soon as someone involves a lawyer.
IMO there are personality traits that certain disciplines foster. In the legal profession, I think one of the traits that gets taught and reinforced is a combative negotiating style. What do you guys think?
Most lawyers are competitive by nature. If you want to call that combative so be it. The two are not mutually exclusive. The American legal system is designed to be adversarial, so you better hope that your attorney is competitive and wants to win for winnings sake. Sometimes though, a lawyers job is counselor, and in this role a lawyer may cousel that winning may not really be winning. For example, you may win custody and have a child that hates you for it, is this really winning?But mediators are often lawyers too. The job of a mediator is to help two parties with a conflict to resolve it. Often the resolution involves exchanging feelings or emotional aspects of the conflict, which for many is more important to the resolution than the actual terms. This requires a steady, thick skinned and non-combative person to hold things together.
Legal tactics can involve hard negotiating, and this is usually a function of the personality of the lawyer more than anything, but the real job of lawyers is to help people resolve their conflicts, not to create them. If your experience is that the presence of a lawyer results in division, then I would say that you were unaware of the preexisting conflict, but that it most certainly already existed at a different or hidden level you didn't see.
FYI, in lawschool these days Alternative Dispute Resolution (ADR) is the preferred curriculum. The combative style is not taught, nor reinforced; quite the opposite in fact.
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