^I thought I said I was already.

The law doesn't limit an author's stake to compensation only. It offers them control too. Not unlimited tho', for example referring to the case you mentioned, you can't abuse your part in a copyright to the detriment of the co-owner. No, you have to stay reasonable too.

But the point is, if one author can terminate a copyright transfer, so can others. There is no need to distinguish before the law the way you just did. What matters is whether it was a work for hire or not. And that simply isn't the case for most works.

So it's NOT JUST Prince's ballgame. And it shouldn't be either. The will have to play it out TOGETHER. Again, just like they did 35 years ago.

Besides don't forget about WB either. They will likely not give up the masters to his classics easily and they may have some more tricks up their sleeve.

Tremolina said:

coltrane3 said:

The secondary musicians who Prince (or any other artist) hired to help him comtemplate his visions (whether openly consulting with him or simply playing exactly what he told them to to) aren't part of the equation, unless they are actual co-writers of the song or if they have an independent contract with the record label. Is this correct?

No that is not correct. Everybody who made a creative contribution to a song, or a recording of a song, in principal has a say over that song or recording. Unless their contribution is a work for hire, or when they grant their copyright to somebody else.

Both are standard industry practices. However, most recording artists' work does not fit within the legal definition of a work for hire, at least not fully. What then becomes legally relevant, is that they transferred their copyright (usually to the record company for the copyright to the recording and to the music publisher for the song). However such conveyance of rights can be reversed under US Copyright law 35 years after the transfer. And that's the issue at play here.

There are certain musicans whose work often does fit within the definition of a work for hire. For example musicians who play in an orchestra or session musicians. Meaning EMPLOYED musicians on the payroll of a record company or studio, who work regular hours, always and exclusively playing and recording stuff the company tells them to, how they tell them to and for whomever the company wants them to. Who normally don't have any creative input of their own, and who get paid a simple monthly salary INCLUDING provisons for insurances, employee taxes and social security.

I am pretty sure Prince's band members were not "session musicians". Yes, they did have some of their characteristics but definitly not all of them.

No, they most likely did not make any works for hire, if you ask me at least. And I am pretty sure that when all the facts are laid out on the table most copyright lawyers would agree with me.

For example: Eric Leeds.

He wasn't employed to Prince in the sense of an employment contract. Prince hired him as an independent contractor whenever he needed sax in his music. And he could record elsewhere and do his own projects as well.

But NOT JUST that. Eric also composed and arranged all the solos he recorded for Prince pretty much himself. Moreover, I am pretty sure he performed and often produced them as well. And again NOT JUST, but also in a way that Prince could never have achieved himself and also never will. Eric Leeds' creative contributions to Prince's records are therefore ESSENTIAL and practically works of art themselves. Same goes for the work of W&L and several others.

The issue is whether Prince, in writing, arranging, producing the songs was "work for hire" in regards to the record label.

It doesn't really matter to what party a musician was employed. What really matters is: WERE they employed (in the sense of a "work for hire")?

My point is: Prince wasn't and neither were his band members.

So after 35 years they ALL have a stake in the copyright claims.

[Edited 8/27/11 9:17am]

Thanks so much. Very interesting, and I enjoy learning about all these concepts.

Would you agree that as the 35-year litigation starts to unfold and expand as more works hit the 35-year mark, there could also be a lot of litigation between artists, not just between the primary artist and the record company?

Also, can we assume that "getting the masters back" isn't a priority for all artists, and that some artists won't seek to get their masters back, for whatever reason?

Tremolina said:

In 2013 there is going to be a WAR in the (US) music industry over this rule. There will be legal battles flying all over the place, because this is about the music moguls bread and butter vs many established recording artists wishing to regain control over their work.

Record companies will claim that all the recordings they released are "works for hire". But most of them are not and so the record companies are going to lose that war by and large.

Yeah, because judges can't be bought. Or aren't inclined to go along with major corporations.

Maybe they'll lose. But before that happens there will be a lot of time and money spent on this.

This thread is depressing. Even when it's explained to them in simple words, people refuse to read what is written, and continue to confuse the various rights.

For crying out loud, I've been talking about these things for FIFTEEN YEARS.

Why won't people LOOK THINGS UP instead of making shit up? You tell 'em to read an article and they come back with questions that are asked and answered in the article.

coltrane3 said:

Tremolina said:

It doesn't really matter to what party a musician was employed. What really matters is: WERE they employed (in the sense of a "work for hire")?

My point is: Prince wasn't and neither were his band members.

So after 35 years they ALL have a stake in the copyright claims.

[Edited 8/27/11 9:17am]

Thanks so much. Very interesting, and I enjoy learning about all these concepts.

Would you agree that as the 35-year litigation starts to unfold and expand as more works hit the 35-year mark, there could also be a lot of litigation between artists, not just between the primary artist and the record company?

Also, can we assume that "getting the masters back" isn't a priority for all artists, and that some artists won't seek to get their masters back, for whatever reason?

You're welcome coltrane3 and I am happy you find it helpful and informative.

I would agree with you that there will be litigation between artists as well. Not just between artists and record companies or music publishers. In fact, I also expect there to be plenty of litigation going even further than just the basic questions of whether it was a work for hire and whether the termination clause applies or not.

And yes, we can also assume that not all recording artists will be trying to get their rights back. I expect that a lot of them will, but still plenty of them won't. Which will probabaly make matters even more complicated then they are already...

BartVanHemelen said:

Tremolina said:

In 2013 there is going to be a WAR in the (US) music industry over this rule. There will be legal battles flying all over the place, because this is about the music moguls bread and butter vs many established recording artists wishing to regain control over their work.

Record companies will claim that all the recordings they released are "works for hire". But most of them are not and so the record companies are going to lose that war by and large.

Yeah, because judges can't be bought. Or aren't inclined to go along with major corporations.

Maybe they'll lose. But before that happens there will be a lot of time and money spent on this.

I expect the lower courts to regularly rule in favour of the companies. The Supreme court however would have a really tough time trying to amend their prior rulings on the core issues in a way that suits the major corporations. They may pull it of with some dirty tricks, but I really wouldn't bet on it.

[Edited 8/28/11 16:08pm]

Tremolina said:

BartVanHemelen said:

Yeah, because judges can't be bought. Or aren't inclined to go along with major corporations.

Maybe they'll lose. But before that happens there will be a lot of time and money spent on this.

I expect the lower courts to regularly rule in favour of the companies. The Supreme court however would have a really tough time trying to amend their prior rulings on the core issues in a way that suits the major corporations. They may pull it of with some dirty tricks, but I really wouldn't bet on it.

But by then an artist has already spent a lot of time and money.

Part of this battle will be: who has the deepest pockets.

^ Yes, and it's not right but isn't it always the way Bart? The legal system in the Western world is based far too much on money and not enough on justice IMO. I mean even the concept of bail is like legalised bribery. If you tried to do that to a police officer you would be arrested, but its acceptable to bribe or 'pay to bail' in the courts, so you can get out of custody.

[Edited 8/29/11 3:38am]

BartVanHemelen said:

Tremolina said:

I expect the lower courts to regularly rule in favour of the companies. The Supreme court however would have a really tough time trying to amend their prior rulings on the core issues in a way that suits the major corporations. They may pull it of with some dirty tricks, but I really wouldn't bet on it.

But by then an artist has already spent a lot of time and money.

Part of this battle will be: who has the deepest pockets.

Yes, but Prince's pockets are deep too and he has got a strong case. I expect that his biggest problems will be with the rights of associated artists.

I hope the artists who are fighting to get their songs back still have money deep in the pockets...

Timmy84 said:

I hope the artists who are fighting to get their songs back still have money deep in the pockets...

That is few and far between

Expect some bands to do out of court settlements with the record company.

Part of Henley's reasoning is if a record company is bought by another company, they can acquire their masters instead of dealing with more red tape.

.

Tremolina said:

BartVanHemelen said:

But by then an artist has already spent a lot of time and money.

Part of this battle will be: who has the deepest pockets.

Yes, but Prince's pockets are deep too and he has got a strong case. I expect that his biggest problems will be with the rights of associated artists.

But is he willing to spend his money? He doesn't exactly have a record of investing. We're talking about a guy who couldn't be arsed to pony up $100 (or less) each year so he'd still own thedawn.com or other URLs.

I think it is matter of principal to Prince and that he will spend whatever money he has to. Do a couple of more tours and he will surely have enough.

BartVanHemelen said:

Tremolina said:

Yes, but Prince's pockets are deep too and he has got a strong case. I expect that his biggest problems will be with the rights of associated artists.

But is he willing to spend his money? He doesn't exactly have a record of investing. We're talking about a guy who couldn't be arsed to pony up $100 (or less) each year so he'd still own thedawn.com or other URLs.

Maybe he didn't care to own them anymore. Have U ever thought about that Mr. negative?

Some people seem to be assuming that there will be a big court case to settle all this between Prince, WB, and Prince's former bandmembers. That may never happen. The legal principles will be worked out in various courts and possibly decided by the Supreme Court eventually, as the NYT article notes. The definitive case could wind up being over some album and band that nobody here is interested in. But it would be a precedent that could determine what happens with Prince's albums and those of all the other artists that this law applies to and who don't settle with their record companies. In the meantime there is likely to be a lot of dealmaking between various players who are nervous about what could happen if the law ends up going the wrong way. In fact I expect this is already going on in Prince's case and has been for some time, but those who are currently involved in the details of Prince's negotations probably aren't sharing their negotiating strategy here on the org.

I appreciate the insights of those who actually know the details of intellectual property law and are willing to share them here. However, I expect that they would agree that no one knows what's happening in the negotations involving Prince except the parties in question and their lawyers, who owe a duty of confidentiality to their clients.

[Edited 9/1/11 22:16pm]

Tremolina said:

wiki has a fairly good explanation of it all too. READ IT:

In the Supreme Court case affirming that the common law of agency should be used to distinguish employers from independent contractors in the work for hire context, Community for Creative Non-Violence v. Reid,^[4] the Court listed some of these factors:

In determining whether a hired party is an employee under the general common law of agency, we consider the hiring party's right to control the manner and means by which the product is accomplished. Among the other factors relevant to this inquiry are the skill required; the source of the instrumentalities and tools; the location of the work; the duration of the relationship between the parties; whether the hiring party has the right to assign additional projects to the hired party; the extent of the hired party's discretion over when and how long to work; the method of payment; the hired party's role in hiring and paying assistants; whether the hiring party is in business; the provision of employee benefits; and the tax treatment of the hired party.

See Restatement § 220(2) (setting forth a non-exhaustive list of factors relevant to determining whether a hired party is an employee)."

Examples of works made for hire in an employer-employee context are a software program created by an employee programmer or ad copy created by a marketing department employee.^[5]

On the other hand, if the work is created by an independent contractor or freelancer, the work may be considered a work for hire only if all of the following conditions are met:

• the work must come within one of the nine limited categories of works listed in the definition above, namely (1) a contribution to a collective work, (2) a part of a motion picture or other audiovisual work, (3) a translation, (4) a supplementary work, (5) a compilation, (6) an instructional text, (7) a test, (8) answer material for a test, (9) an atlas;
• the work must be specially ordered or commissioned;
• there must be a written agreement between the parties specifying that the work is a work made for hire.^[3]

In other words, mutual agreement that a work is a work for hire is not enough. For example, if Willy James commissioned Octavia Goodnotes to write a symphony in honor of WillyJamesCo's 10th Anniversary, and she agreed in writing that the work was a work for hire, and promised in writing to never consider the symphony anything but a work for hire — it would not be a work for hire because symphony was not created as part of a motion picture or other audiovisual work. In other words, the work does not come within one of the nine categories of WFH that are created by an independent contractor.

{...}

An author has the inalienable right to terminate a copyright transfer 35 years after agreeing to permanently relinquish the copyright.^[6] However, according to the US Copyright Office, Circular 9 "the termination provisions of the law do not apply to works made for hire."^[3]These restrictions, in both the work for hire doctrine and the right of termination, exist out of recognition that artists frequently face unequal bargaining power in their business dealings.

{...}

An author can grant their copyright rights (if any) to the hiring party. However, if not a work made for hire, the author or the author's heirs may exercise their right to terminate the grant. Termination of a grant cannot be effective until 35 years after the execution of the grant or, if the grant covers the right of publication, no earlier than 40 years after the execution of the grant or 35 years after publication under the grant (whichever comes first).^[6]

http://en.wikipedia.org/w...k_for_hire

[Edited 8/18/11 4:57am]

If the definition of "work for hire" turns on a "non-exhaustive list" of factors in a Restatement, they are all in trouble, because no one knows for certain what the courts are going to make of that in this context and the judicial process may drag out for years. I guess that's the point of the New York Times article. Let's hope Prince decides he needs a big settlement payment from WMG soon to renovate Paisley Park and get a better security system than the resident dog. I don't think it would be hard to buy off Prince's bandmates if WMG got Prince on board.

KCOOLMUZIQ said:

BartVanHemelen said:

But is he willing to spend his money? He doesn't exactly have a record of investing. We're talking about a guy who couldn't be arsed to pony up $100 (or less) each year so he'd still own thedawn.com or other URLs.

Maybe he didn't care to own them anymore. Have U ever thought about that Mr. negative?

Those URLs are printed in booklets, on CD covers etcetera. Letting them expire exposes them to abuse.

Hey, guess what: one of the websites he sued was... thedawn.com! That had been picked up by someone who was using Prince pics as e-cards.

IIRC one of the URLs he failed to renew became a gay porn site.

Only an idiot lets a URL expire when that's been used in print etc as associated with him. The price of such a renewal is peanuts.

BartVanHemelen said:

KCOOLMUZIQ said:

Maybe he didn't care to own them anymore. Have U ever thought about that Mr. negative?

Those URLs are printed in booklets, on CD covers etcetera. Letting them expire exposes them to abuse.

Hey, guess what: one of the websites he sued was... thedawn.com! That had been picked up by someone who was using Prince pics as e-cards.

IIRC one of the URLs he failed to renew became a gay porn site.

Only an idiot lets a URL expire when that's been used in print etc as associated with him. The price of such a renewal is peanuts.

I don't feel he really cared about them. But he has kept 3121.com

electricberet said:

I appreciate the insights of those who actually know the details of intellectual property law and are willing to share them here. However, I expect that they would agree that no one knows what's happening in the negotations involving Prince except the parties in question and their lawyers, who owe a duty of confidentiality to their clients.

Of course we nor I don't know what's really going on. But based on knowledge and experience we could make a fairly educated guess.

Like I have said before, I am pretty confident that Prince, WB and associated artists will all come to agreements with eachother sooner or later. There may be some (preliminary) legal battling going in court over some matters (the albums with the Revolution, the Hits and SOTT for example), but those will also likely be settled at some point.

(And hopefully with some kickass remaster packages )

An interview with Don Henley on this topic:

http://www.rollingstone.c...e-20110907

AlexdeParis said:

guitarslinger44 said:

Sure it is. Ever heard of "Intellectual Property?" It refers to ideas, lyrics, music, poetry, etc. Stuff that technically isn't tangible but can and should be allowed to be controlled by those responsible for creating it.

"Intellectual property"? You mean the same phrase I called an oxymoron earlier in the thread?

Yes, the lawyers, companies, and artists want you to believe that intellectual property is property. The fact they can't control it anywhere near as easily as tangible objects tells a different story. As they say, "Possession is nine-tenths of the law." Ideas can't be possessed in any meaningful way, which is why there's so much chaos and they keep changing the laws to suit those who have the most lobbying influence and money.

You can call it whatever you want, but that doesn't mean that the law agrees with you.

You're right that an idea can't be copyrighted, but a song or a poem is more than just an idea. I have ideas all the time, but once I put a recording down it goes from being an idea to an actual work that can be controlled by me if I see fit. There's a lot of chaos now because people who have no real right to benefit from another's hard work feel as though they do. If these greedy folks would get over themselves, there'd be a lot less "chaos."

guitarslinger44 said:

AlexdeParis said:

"Intellectual property"? You mean the same phrase I called an oxymoron earlier in the thread?

Yes, the lawyers, companies, and artists want you to believe that intellectual property is property. The fact they can't control it anywhere near as easily as tangible objects tells a different story. As they say, "Possession is nine-tenths of the law." Ideas can't be possessed in any meaningful way, which is why there's so much chaos and they keep changing the laws to suit those who have the most lobbying influence and money.

You can call it whatever you want, but that doesn't mean that the law agrees with you.

You're right that an idea can't be copyrighted, but a song or a poem is more than just an idea. I have ideas all the time, but once I put a recording down it goes from being an idea to an actual work that can be controlled by me if I see fit.

You are totally correct, up untill the last part. The only control a copyrightowner really has is legal control. You have "exclusive rights" to copy and publish in whatever form.

However these rights are also limited in many ways by law, but even moreso, they are extremely limited by the reality that these days everybody can be a printer and a publisher, including artists. They nor consumers don't really need those companies anymore. All you need is a computer with an internet connection. And these days BILLIONS of people already have that.

There's a lot of chaos now because people who have no real right to benefit from another's hard work feel as though they do. If these greedy folks would get over themselves, there'd be a lot less "chaos."

Even tho' there is truth in this statement, it also reflects on the music industry itself. If there is one industry that can't get over itself, that has created a chaos with greed and abuseno real right to benefit from another's hard work, but that feels as though they do, it's the music industry.

Some labels or lawyers are citing all the hurdles artists face in getting back their music: that bands will have to have a majority vote or that labels will invoke "work for hire" rights, as if the musicians were employees.

A lot of those are red herrings the labels have thrown out there to try to confuse the issue. Record companies insist sound recordings are "work for hire" and artists are employees of the companies. Which is a real interesting claim because we don't enjoy any of the benefits or obligations a normal employee would be granted. They don't provide health insurance for us. They don't pay Social Security for us. They don't withhold taxes from our royalty checks. They don't provide us a place of employment. It's a real stretch for the record companies to claim we're employees. We're independent contractors.

right on

What are the options?

Artists have several things they can do. They can re-up with the label and use this as leverage to renegotiate a recording agreement. They can invoke termination rights and take back their master recordings and see what they can do themselves. If they get it back, they can shop it around and see if anybody else wants it – another label or an indie label or they might market it themselves on the Internet. Or artists can go back and re-record everything.

Which would probably be for the best in many cases, but which in many cases also would greatly complicate matters even further.

Very tricky option!

What Don Henley and the RAC should be doing is draft a new standard contract for recording artists who are in the position to renegotiate their deals thanks to this law.

They should be promoting that new standard contract everywhere and lobby Congress to make it compulsory. It should be fair and balanced in all aspects of it, unlike the current and old models the industry has always used.

And they should be going out on a limp everywhere to make artists aware of their rights, to join the initiative and make sure they keep standing together so they can make a change.

However, as Don points out himself already: recording artists are an incredibly disorganized, very stubborn, guilty feeling, independent lot who don't band together.

So we may just as well forget about it.

[Edited 9/9/11 8:29am]

electricberet said:

If the definition of "work for hire" turns on a "non-exhaustive list" of factors in a Restatement, they are all in trouble, because no one knows for certain what the courts are going to make of that in this context and the judicial process may drag out for years. I guess that's the point of the New York Times article.

Correct, they are all in trouble. And this matter will most definitly end up being decided by the Supreme court. Nothing is impossible there, but I don't see them changing their prior rulings on the work for hire doctrine substantially, in a way that suits the major companies.

Let's hope Prince decides he needs a big settlement payment from WMG soon to renovate Paisley Park and get a better security system than the resident dog. I don't think it would be hard to buy off Prince's bandmates if WMG got Prince on board.

I don't hope they would. If either Prince or one of his former band members and co-writers sells out again to Warner or somebody else, you can forget about any remaster packages for good. Even standard re-issues would become a problem then. They will be warring about it forever.

[Edited 9/9/11 8:44am]

Tremolina said:

What Don Henley and the RAC should be doing is draft a new standard contract for recording artists who are in the position to renegotiate their deals thanks to this law.

They should be promoting that new standard contract everywhere and lobby Congress to make it compulsory. It should be fair and balanced in all aspects of it, unlike the current and old models the industry has always used.

And they should be going out on a limp everywhere to make artists aware of their rights, to join the initiative and make sure they keep standing together so they can make a change.

However, as Don points out himself already: recording artists are an incredibly disorganized, very stubborn, guilty feeling, independent lot who don't band together.

So we may just as well forget about it.

[Edited 9/9/11 8:29am]

WORD!

Tremolina said:

^I thought I said I was already.

The law doesn't limit an author's stake to compensation only. It offers them control too. Not unlimited tho', for example referring to the case you mentioned, you can't abuse your part in a copyright to the detriment of the co-owner. No, you have to stay reasonable too.

But the point is, if one author can terminate a copyright transfer, so can others. There is no need to distinguish before the law the way you just did. What matters is whether it was a work for hire or not. And that simply isn't the case for most works.

So it's NOT JUST Prince's ballgame. And it shouldn't be either. The will have to play it out TOGETHER. Again, just like they did 35 years ago.

Besides don't forget about WB either. They will likely not give up the masters to his classics easily and they may have some more tricks up their sleeve.

I believe it.

guitarslinger44 said:

AlexdeParis said:

"Intellectual property"? You mean the same phrase I called an oxymoron earlier in the thread?

Yes, the lawyers, companies, and artists want you to believe that intellectual property is property. The fact they can't control it anywhere near as easily as tangible objects tells a different story. As they say, "Possession is nine-tenths of the law." Ideas can't be possessed in any meaningful way, which is why there's so much chaos and they keep changing the laws to suit those who have the most lobbying influence and money.

You can call it whatever you want, but that doesn't mean that the law agrees with you.

Seriously? Are you really having this much of a problem following the conversation? I'm not arguing what the law is, I'm saying the law is stupid. Feel free to disagree.

You're right that an idea can't be copyrighted, but a song or a poem is more than just an idea. I have ideas all the time, but once I put a recording down it goes from being an idea to an actual work that can be controlled by me if I see fit. There's a lot of chaos now because people who have no real right to benefit from another's hard work feel as though they do. If these greedy folks would get over themselves, there'd be a lot less "chaos."

Again, the problem is these works cannot be controlled in the same way as actual property. Sue whomever you want, the battle against copyright infringement will be won about a century after the war on drugs.

...and in case you need a translation, that means never.