The same old song?

The federal copyright law that went into effect in 1978 gave creators a chance to reclaim their rights to a work 35 years after they sold them. Whether musicians and songwriters can exercise that option, however, is in dispute. Many bands and solo acts have signed contracts since then that declare them ineligible to reclaim their recordings. Numerous songwriters signed long-term contracts with music publishers before 1978 that their publishers say are controlled by the previous federal law, which prevents copyrights from being reclaimed for 56 years. The Copyright Office has tried to resolve the latter dispute, but it acknowledged that the final say may have to come from Congress. The situation with recording artists is more complex, so much so that the courts will probably have to settle fights over copyrights case by case.

Copyright law gives the author of an original work — a category that includes musicians, photographers, playwrights and novelists — a lot of control over how their creations can be exploited. But because their expertise usually is in creating works, not wringing money out of them, they typically assign their rights to publishers in exchange for a cut of the sales.

The notion that authors should be able to reclaim the rights they trade away dates back to the early 1700s and the very first copyright law, England’s Statute of Anne. The reasoning was that publishers have so much more negotiating leverage, especially over new and unheralded artists, that creators should have a second chance to strike a better deal. The 1978 law, which granted federal copyrights to sound recordings for the first time, allowed rights to be reclaimed in 35 years. But it included an important exception: the creator of a “work made for hire” was not considered its author, and so had no rights to reclaim. Two types of works fall into this category: those created for an employer, such as articles written by newspaper reporters; and those “specially ordered or commissioned” for inclusion in a collective work, a movie or TV show, a textbook, a test, an atlas or a supplement to someone else’s work, provided that their creators’ contract stipulates that they were working for hire.

Today, the major record companies routinely include just such a stipulation in their contracts with recording artists. But some courts, copyright scholars and formidable entertainment attorneys, such as Jay Cooper of Los Angeles, contend that such clauses aren’t enforceable, even if musicians agreed to them, because sound recordings don’t fit within the limited exception Congress provided. Musicians are the authors of their recordings, and as such can reclaim their rights.

Predictably, this point is hotly disputed by the labels. A few weeks after a court held in 1999 that sound recordings were not works for hire, the Recording Industry Assn. of America persuaded Congress to make a “technical correction” to copyright law that added such recordings to the list of “specially ordered or commissioned” works. The change surprised and outraged musicians, who persuaded lawmakers to delete the change the following year. In doing so, however, Congress declared that it wasn’t taking any position on whether sound recordings should be considered works for hire.

Nor does the question lend itself to a simple answer or statutory fix. It’s easy to think of situations in which a single or an album should be considered a work for hire. For example, when a label or a producer recruits a group of musicians and picks songs for them to record — as with a flavor-of-the-month boy band or singer — the band members seem more like commissioned artists than authors. But it’s just as easy to envision situations in which the label is merely applying its business acumen to an artist’s work. Consider, for example, the case of a band that writes and records its own material, which its label then markets and distributes. That seems little different from a novelist who assigns his rights to a publisher, with the unquestioned power to reclaim them in 35 years.

Naturally, there’s a range of situations between those extremes. There’s also a question of equity. The major labels have pointed out that successful artists have other ways to extract better terms from labels besides reclaiming copyrights. Instead, artists who have a hit record invariably seek to renegotiate with the labels and obtain a better deal. So they wait far less than 35 years for a second bite at the apple. That’s if they’re successful, however, and the vast majority of recording artists aren’t.

And if a band wins back its rights, how should it sort out the interests of its various members? Should the lead guitarist have more say than the bassist? What happens if one member of a duo wants to strike a deal with a new record company while the other wants to stay with their original label?

Many artists may decide not to try to reclaim the rights because they have no interest in finding a new label or doing their own marketing and sales for their old works. But others are likely to be emboldened by the profusion of opportunities online, especially for artists who have already built up fan bases with the labels’ help. Given the complexities of the issue, a clearer picture of who can and cannot reclaim rights probably won’t emerge until the courts resolve some of the looming disputes.

The situation with songwriters is quite a bit simpler. The Copyright Office issued a rule in June stating that the rights to songs written after 1978 are subject to reversion in 35 years, regardless of any contract the songwriter might have been under at the time. That means, for example, country-rock legend Charlie Daniels should be able to reclaim the rights to his 1979 hit “The Devil Went Down to Georgia” in 2014, when he’s 78, instead of waiting until he’s in his 90s. But Congress should put the Copyright Office’s ruling into statute to clear up any doubts about the office’s authority. That won’t clear up all the controversy surrounding reversion, but it’s probably the most lawmakers can do.