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Authorship and ownership exist in a curious relation in U.S. copyright law. In theory, authorship underwrites and is the condition of ownership, but in practice, it often seems that ownership establishes authorship retroactively, as its own ground. Because it is the basis for the monopoly control of copyrights and claims on profits, the authorship / ownership complex is central to the relations of production of popular music. Vocalist for hire Miami Jacksonville Florida. Because the stakes at issue are so high, the determination of which music makers can and cannot claim the mantle of authorship depends on the results, sometimes long-encrusted, sometimes fresh and raw, of political struggles. Vocalist for hire Miami Jacksonville Florida. This chapter concerns the paradoxical and often contentious relations of “featured artists” to the sound recordings they produce, their record label contractors, and their backup musicians, producers, engineers and other creative collaborators as mediated, in this case, through a 2000 struggle over U.S. copyright law. Vocalist for hire Miami Jacksonville Florida.
In November of 1999, Congress passed an obscure amendment into American law that would have significant repercussions for the relations of recording artists, studio musicians and personnel, and the recording industry. Vocalist for hire Miami Jacksonville Florida. The amendment, buried in a 1,740-page spending bill, changed the wording of US copyright law to include “sound recordings” in the list of “commissioned works” eligible for “work for hire” status. Work for hire doctrine is that element of copyright law that governs intellectual property produced in the workplace and, in certain circumstances, under commission. Since the turn of the 20th-century intellectual property produced by American employees, unless otherwise specified in the employment contract, has the employer as its legal author and owner. Vocalist for hire Miami Jacksonville Florida. For much of the century, this allocation of authorship and ownership was also operative with respect to works produced under commission, by freelancers or independent contractors, outside the employment relation. Since the 1978 implementation of the 1976 Copyright Act, the authorship, and ownership of works produced under commission have been more closely regulated, with nine categories of such works eligible for legal appropriation by commissioning parties. Vocalist for hire Miami Jacksonville Florida. The 1999 edition of “sound recording” to this list of categories eliminated the legal basis for artist authorship and ownership, changing at a stroke the balance of power between recording artists and the record labels who commission their work. Under conventional recording contract language, recording artists would no longer legally be recognized as the authors and proprietors of their sound recordings (the sonic expressions that become concretized in CDs, cassettes, and LPs, also protected in the form of digital files). Vocalist for hire Miami Jacksonville Florida.
Within a few weeks of discovering this change, recording artist advocates got the word out, and soon a coalition of artists and advocates were calling on Congress to repeal the law. The Subcommittee on Courts and Intellectual Property of the US Congress held a hearing in May of 2000, at which interested parties and experts offered testimony concerning the purpose, magnitude and results of the change. Vocalist for hire Miami Jacksonville Florida. Artists and their advocates argued that the change was an act of appropriation; the industry maintained that the change merely clarified predominant practice. By year’s end, the law had been repealed “without prejudice.” The artists’ defense of their authorship, however, depended on their ability to define themselves as employers legally entitled to dispossess their employee collaborators. Vocalist for hire Miami Jacksonville Florida. This chapter will examine this interaction of copyright law, authorship rhetoric and working conditions in the music industry. Vocalist for hire Miami Jacksonville Florida.
This episode made clear to artists that, while they often share some goals with their record companies (for example, a shared general interest in copyright protection), at the level of social relations their interests are sharply divergent, and spurred the development of an artists rights movement made up of professional, labor, and advocacy groups. Vocalist for hire Miami Jacksonville Florida. This development has led to a much greater and more active representation of the interests of recording artists and musicians in general in the U.S. Congress and the California and New York state legislatures. Most importantly from the perspective of this study, copyright’s “millennial flip flop” (Nimmer 1978/2005) shows how the resistance to alienation through claims of authenticity (framed, in this case, in terms of Romantic authorship) often requires those claims be borne on the backs of subordinate others. that the “illegitimate” dispossession of one group can be defended against through the enforcement of the “legitimate” dispossession of another group. Vocalist for hire Miami Jacksonville Florida.
The account in this chapter will focus on the paradoxical relationships between the rhetoric’s employed by the two opposing sides in this struggle over authorship and property. Vocalist for hire Miami Jacksonville Florida. Having set out this political dimension of the relations of popular music production and its (legislative) representation in the first part of the chapter, I will then move to a consideration of the employment relation in capitalism in its capacity of supplying the conditions of possibility for the recording artists’ response to the RIAA’s legislative efforts. Vocalist for hire Miami Jacksonville Florida.
Sound Recordings as Works Made for Hire. Vocalist for hire Miami Jacksonville Florida.
On November 16, 1999, Margaret Cone, a lobbyist working at the time for the American Federation of Radio and Television Artists (AFTRA) received a tip that a pending bill threatened to affect the interests of her client. Buried in Section 1011 (“Technical Amendments”) of the “Satellite Home Viewer Act,” she found what she’d been warned about: “(d) Work Made for Hire. Vocalist for hire Miami Jacksonville Florida. Section 101 of title 17, United States Code, is amended in the definition relating to work for hire in paragraph (2) by inserting ‘as a sound recording’, after ‘audiovisual work’.” Come later told an interviewer that upon finding this passage, her “knees literally gave way.” Regaining herself, she went to the offices of the House of Representatives “to find out how bad it was.” Vocalist for hire Miami Jacksonville Florida. A few days later, the 1,740-page spending bill to which the Satellite Act had been affixed was passed, shortly thereafter to be signed by President Clinton. She had discovered the language too late to ask for changes (Boehlert 2000). Vocalist for hire Miami Jacksonville Florida.
There are two important copyrights associated with any recorded pop song, the composition copyright and the sound recording copyright. Vocalist for hire Miami Jacksonville Florida. The former is the song in its immaterial form of words and melody. Unless a composition is the product of an employee or has been specially commissioned for use in a work-for-hire eligible final product, its copyright is the property of composer(s) and/or lyricist(s), who typically assign it to a publishing company for the purpose of promotion and commercial exploitation. Vocalist for hire Miami Jacksonville Florida.
The latter copyright is that which is associated with the embodiment of a particular performance in a recording medium, the sounds captured on a record, tape, CD or digital file. Sound recordings were made eligible for copyright in 1972 when a new right was created to protect owners of sound recordings from market incursion by counterfeiters. Vocalist for hire Miami Jacksonville Florida. At the turn of the 20th century, a single player piano manufacturer, Aeolian, had locked up exclusive rights to the production of piano rolls of almost all popular compositions. Fearing monopolization and restraint of trade in the booming new music industry, the Congress established a “compulsory mechanical license” as part of the 1909 Copyright Act that would allow any producer of “mechanical” reproductions (initially piano rolls, but soon audio recordings to record and distribute such reproductions of any previously published song. Vocalist for hire Miami Jacksonville Florida. Permission to record and distribute, previously the right of the copyright owner to grant or deny, was thereafter automatically triggered by agreement to pay the “statutory rate” in mechanical royalties for every copy sold. Thus, any producer of (mechanical) sound recordings could release a recording of any published song, regardless of the wishes of the copyright holder, as long as he or she paid the owner of the song’s copyright the statutory rate: a couple of pennies per song, per record sold at the turn of the century, to increase according to a schedule set by Congress. Vocalist for hire Miami Jacksonville Florida.
The compulsory license contributed to the fantastic growth of the recording industry in the early part of the 20th century, but it also made possible rampant and difficult-to-prosecute bootlegging of sound recordings. Vocalist for hire Miami Jacksonville Florida. In the 1950s and 1960s, entrepreneurs willing to work on the shady side could thus profit by taking advantage of the prior investments in recording, production, and promotion of the “legitimate” record labels. Such entrepreneurs would simply reproduce a popular album, or lesser-known recordings by now-famous artists, distribute them to various outlets for sale, and have only to pay the statutory license fee to stay within the law. Several states enacted laws against this type of bootlegging in the late 60s, but the recording industry wanted federal protection. Vocalist for hire Miami Jacksonville Florida. They lobbied Congress and by late 1971 a bill was passed creating a new right, a copyright in sound recordings, which empowered the federal government to prosecute counterfeiters, and added to the legal and economic power of the recording industry through the creation of a new monopoly. Vocalist for hire Miami Jacksonville Florida.
Work For Hire and Termination of Transfers. Vocalist for hire Miami Jacksonville Florida.
A work made for hire is one for which authorship (and therefore ownership for the life of the copyright) resides not in the direct producer but in that producer’s employer or contractor. Vocalist for hire Miami Jacksonville Florida. To determine whether a given intellectual property is a “work made for hire,” the law provides a “two prong” test. First, all copyright-eligible material produced by an employee (as defined in Reid, 490 U.S. 730, 751 ) is by definition work for hire; regardless of who actually creates it, the legal author/owner of any work produced by an employee is the employer.3 The second prong concerns work made on special commission, not by employees but by freelancers or independent contractors. Under the 1909 Copyright Act, commissioned works were treated as employee works. Vocalist for hire Miami Jacksonville Florida. The framers of the 1976 Copyright Act, however, intended to eliminate work for hire eligibility for all commissioned works and shifted the law in favor of direct producers. “In a 1963 preliminary draft bill,” writes Marci Hamilton, “the Copyright Office defined ‘work made for hire’ as ‘a work prepared by an employee within the scope of the duties of his employment, but not including work made on special order or commission’ Thus, contrary to the case law interpreting the 1909 Act, no commissioned works would have been deemed works made for hire.” (1291). Vocalist for hire Miami Jacksonville Florida. Nevertheless, the motion picture and publishing industries, learning of Congress’ intentions, were able through intensive lobbying and discussion with representatives of groups of freelancers and independent contractors in their fields, to obtain exceptions for forms of commissioned works central to their businesses (Stewart 1984). These exceptions constitute the nine legislated categories of commissioned works that are eligible for work for hire status:
- a contribution to a collective work (such as an encyclopedia or dictionary). Vocalist for hire Miami Jacksonville Florida.
- a part of a motion picture or other audiovisual work. Vocalist for hire Miami Jacksonville Florida.
- a translation. Vocalist for hire Miami Jacksonville Florida.
- a supplementary work. Vocalist for hire Miami Jacksonville Florida.
- a compilation. Vocalist for hire Miami Jacksonville Florida.
- an instructional text. Vocalist for hire Miami Jacksonville Florida.
- a test. Vocalist for hire Miami Jacksonville Florida.
- answer material for a test. Vocalist for hire Miami Jacksonville Florida.
- an atlas. Vocalist for hire Miami Jacksonville Florida.
If a work falls under one of these categories, and there is a contract specifying that the work is a work made for hire, then the contracting party is the author, and the actual creator has no rights to the work. Vocalist for hire Miami Jacksonville Florida. Sound recordings, not protected by copyright law at the time that list was established, did not come up for discussion. Vocalist for hire Miami Jacksonville Florida.
The 1976 Act declares, with the exception of works made for hire, that all copyrights revert to their authors thirty-five years after “transfer,” that is, after the assignment of the copyright to a record label, book publisher or another party. Vocalist for hire Miami Jacksonville Florida. This is known as “termination of transfer,” and was intended to offer what Congressman Howard Berman (D-Ca) later called a “second bite at the apple” (transcript, United States Copyright Office, and Sound Recordings as Work Made For Hire; Hearing Before the Subcommittee on Courts and Intellectual Property of the Committee on the Judiciary House of Representatives, May 25, 2000: 112 [hereafter “Hearing”]). “From the beginning of the copyright law revision process in 1965,” writes Hull (2005: 309) “Congress sought to provide authors with some means to protect themselves against “unremunerative transfers” made prior to any determination of the true value of the work” as would happen after some years in the market. Termination doesn’t happen automatically, the author must initiate a statutory process of termination no less than two and no more than ten years prior to the termination date. Vocalist for hire Miami Jacksonville Florida. It is, however, an inalienable right, you don’t have to exercise it (your existing contract will remain valid and you will remain the lawful owner), but you can’t sell it. If you’re an author, you can reclaim your copyrights thirty-five years after transferring them, no matter what your contract actually says. If your production is work for hire, you have no rights, ever, to that which you’ve produced. Vocalist for hire Miami Jacksonville Florida.
While “prong one” of work for hire specifies the allocation of authorship and ownership according to the nature of the relationship between the direct producer and the hiring party, “prong two” can be understood to regulate labor relations through the definition of certain kinds of properties: depending solely on a determination of the legal status of the property at issue, the “natural author” may be virtually relegated to the status of employee or may enjoy proprietorship. In the case of commissioned works, copyright law stipulates that there must be a contractual agreement to the effect that the work-for hire eligible produce will be the property of the commissioning party, but the publishing, motion picture, and other mass media industries have so concentrated their market power that most freelancers in these fields have little choice but to relinquish their rights in order to practice their professions. Vocalist for hire Miami Jacksonville Florida.
Critical observers of the “millenial flip flop” saw what they called a “pre-emptive strike” (Holland 2000A) by the recording industry, through the RIAA, to secure sound recordings before the artists responsible for late 70s hits start the termination process for income-generating songs. Vocalist for hire Miami Jacksonville Florida. This would enable the maintenance of a secure catalog, far beyond the 35-year termination of transfers period: 95 years from the date of first publication for corporate authors. “Catalog,” or a recording company’s copyright holdings, is a body of income properties of varying or potential market value. In 1972, record company catalogs became considerably more valuable with the establishment of the copyright in sound recordings, the ability legally to exclude others from using the property without permission. Federally-enforced intellectual property monopolies, made possible through the sound recording copyright – have enabled catalog to generate rivers of secure profit, long after costs have been recouped, with less risk in marketing. Vocalist for hire Miami Jacksonville Florida. The commercial success of the recent Elvis Presley and Beatles “#1 Hits” albums are high-profile indicators of the value of catalog; there are likely to be vast amounts of the catalog from the 70s, 80s, and 90s that will be similarly exploitable. Vocalist for hire Miami Jacksonville Florida.
Copyrights granted after the 1976 Act became law in 1978 will begin to be subject to reversion in 2013; natural authors are already able to initiate the process necessary for the termination of transfers. “It is a safe assumption,” writes Strohm (2003/2004), “that record companies have already begun to receive termination notices from their artists under contract.” Vocalist for hire Miami Jacksonville Florida. As the reversion of the late 70s sound recording copyrights looms, experts on both sides disagree as to whether or not sound recordings can be considered works made for hire. Several cases, while not decisive, suggest that no matter what the contract says, if it’s not on the list of the enumerated categories of works, then it’s not eligible for work-for-hire status. The 1999 edition of “sound recording” to the list of categories in the 1976 Copyright Act, however, decided the matter, without hearings or the solicitation of comments from interested parties. Vocalist for hire Miami Jacksonville Florida.
Following Cone’s discovery, a battle raged in the pages of Billboard, the premier music industry trade journal. Bill Holland, Billboard’s Washington correspondent, wrote over thirty stories, many of them cover stories, that included interviews with major players in the “musician community,” the RIAA and other industry organizations, and members of the subcommittee. Vocalist for hire Miami Jacksonville Florida. The controversy rated little attention in the mainstream press, for whom the Napster case was much sexier, but after weeks of argument in the trade journals, Chairman of the Subcommittee, Rep. Howard Coble (R – NC), scheduled a hearing. Vocalist for hire Miami Jacksonville Florida.
The Hearing. Vocalist for hire Miami Jacksonville Florida.
At 10:03 AM on May 25, 2000, the work for hire hearing began in room 2141 on the second floor of the Rayburn House Office Building; it was to last just under four hours. In attendance were several artists as well as supporters, including banjo maestro Earl Scruggs, recognized and saluted by Chairman Coble, and girl group vocalist Ronnie Spector, “who burst into ‘Be My Baby’ after being introduced, to the delight of the attendees and lawmakers” (Holland 2000B), an appropriate opening in an argument over the properties some artists describe as their offspring. Vocalist for hire Miami Jacksonville Florida. Following the opening statements of several members of the Subcommittee, Register of Copyright Marybeth Peters offered testimony as for the highest government official in the Copyright Office suggesting that the change under discussion “was a substantive amendment to the law, not a technical amendment as some have claimed” (Hearing: 78). The witnesses offering testimony and answering Committee members’ questions were, in order of appearance Hilary Rosen, president and CEO, Recording Industry Association of America, Paul Goldstein of Stanford (on behalf of the RIAA), Marci Hamilton of the Cardozo School of Law (on behalf of recording artists), Sheryl Crow, and Michael Greene, president and CEO of the National Academy of Recording Arts & Sciences, Inc. (also on behalf of recording artists). Vocalist for hire Miami Jacksonville Florida. In addition, letters from 35 interested parties, including the members of the Artists Coalition, a group formed by Sheryl Crow and Don Henley for the purpose of presenting a united front in Washington on the issue of work for hire (soon, significantly, to become the Recording Artists Coalition), were entered into the record. No artists testified in support of the RIAA’s position. Vocalist for hire Miami Jacksonville Florida. That evening, Bill Holland reported, Joni Mitchell interrupted her concert at the Merriweather Post Pavilion in nearby Columbia, Maryland, to announce her support of the hearing to her audience of 6,000 fans (Holland 2000C). Vocalist for hire Miami Jacksonville Florida.