The Copyright Act and the Future Music Industry
Barry Heyman is an entertainment attorney with a focus in the areas of entertainment, intellectual property (copyrights and trademarks), and new media law. He has helped me out in the past by answering some important questions regarding Copyright Law (and even answered a question that had me stumped about how to license a cover song here on Musician Coaching last fall). He has worked in the Copyright Administration department at PolyGram and Universal Records and was in-house counsel for Eagle Rock Entertainment (producer, publisher, and distributor of music programming for television and DVD, comprising live concerts and documentaries). He has also consulted clients such as MTV and Razorfish. Barry currently runs his own practice out of New York and was an adjunct professor at NYU where he taught a graduate course entitled Law and the Music Industry.
Copyright law and artists’ rights are topics that come up quite a bit around here. And Barry was kind enough to share an article he published recently entitled “Termination Rights in Sound Recordings” about some big changes that are in store for copyright law in the next year that will directly affect the music industry.
Starting in 2013, for the first time in history, authors of sound recordings might be able to regain ownership of their sound recordings based on rights they originally granted to the record companies during and after 1978. Works by legendary artists such as Bob Dylan, Billy Joel, Bruce Springsteen, Tom Petty and many, many others will be some of the first to be eligible for this termination process. And chances are good this will cause recording artists and record companies to clash, as many artists will start the process of taking over ownership of their own recordings so they can start commercially exploiting them, while record companies fight to keep their ownership interest so they can continue to freely exploit and profit from these recordings.
So, how exactly will this shift look, and how might it affect musicians and other industry professionals? As Barry states, “The Copyright Act grants an author termination rights in all types of copyrighted works including books, photographs, and musical compositions (as may be embodied in the sound recordings). Since Federal copyright law protection was more recently extended to sound recordings in 1972, 2013 marks the first time a grant of rights in sound recordings under copyright law may be terminated.” This termination right was originally created so the “author” (which, in the music industry would be the recording artist) and the “entity to which the copyrighted works (sound recordings) were transferred” (aka, a record label/company) would be on more equal footing.
As Barry outlines, usually artists – especially emerging artists and those at the beginning of their careers – tend to not be in the best bargaining positions and then end up not necessarily getting the best deals from labels at this point. And of course, it’s never easy to predict how valuable a sound recording is going to be before it’s officially out in the marketplace. So, in simple terms, the new “termination right” lets either reclaim ownership interests in the sound recordings in order to try their hand at marketing and selling them, or re-negotiate their original contract. And, this could inevitably lead to quite a bit of litigation, as those on all sides of the industry work to interpret the law and protect their own best interests.
You can read Barry’s full article here. In it, he clearly explains the many different moving pieces of this aspect of copyright law as it relates to the music and entertainment industries, the impending potential complications, and what can be done to ensure that Congress’ original intention with this law – to “create balance and fairness for artists and record companies” – is upheld.
You can also read more about the work he does as well as find a variety of other useful articles and resources about various aspects of the music and entertainment businesses on the Heyman Law website.