To rent or to own. The record labels may soon find that they have been renting all along. The 1976 Federal Copyright Act included a provision for termination rights, so artists could claw back the underlying economic rights to their songs and music after thirty-five years. Because the 1976 Act did not pass until 1978, 2013 is the magic year, and both sides of the table have already begun their preparations.
As far back as 1999, Mitchell Glazier, then copyright counsel to the Republican head of the Judiciary Committee, inserted language into an omnibus bill that would redefine sound recordings as work for hire. Reclassified as such, the work of musical artists would no longer include termination rights. It would equate them to rank and file employees of the the record labels. The bill and the amendment passed quietly, with little outside recognition of its contents or consequences. Says William Patry (via NYT), “That amendment was essentially passed in the middle of the night.” Within a year, however, artists learned of the change and successfully lobbied Congress to roll it back. Glazier would go on to be the Chief Lobbyist at the RIAA.
Today, with 2012 looming, the field has been set. The recording artists and the recording industry have each dug into their positions. With bulwarks made, the battle is set to begin. Was Springstein’s Darkness on the Edge of Town a work for hire, as the recording industry claims? Or as June M. Besek, executive director of the Kernochan Center for Law, Media and the Arts at the Columbia University School of Law, says, “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.”
Don’t expect the debate to be resolved by an unnoticed bill passing in the middle of the night.