Bob Marley's Work Declared 'Work For Hire,' Family Can't Get Rights Back

from the this-could-be-big dept

Reuters is reporting on the fact that Bob Marley’s family has lost a case where they attempted to get control over certain rights concerning his most famous songs. I haven’t yet seen the actual ruling (anyone have it?), and the Reuters writeup is a bit confusing at points, but the point that caught my attention was that the judge ruled that Universal Music holds the rights to Marley’s music, because Marley’s work was done on a “work for hire” basis:


Cote concluded that Marley’s recordings were “works made for hire” as defined under U.S. copyright law, entitling UMG to be designated the owner of those recordings, for both the initial 28-year copyright terms and for renewals.

“Each of the agreements provided that the sound recordings were the ‘absolute property’ of Island,” Cote wrote. “Whether Marley would have recorded his music even if he had not entered the recording agreements with Island is beside the point.”

She added that it was irrelevant that Marley might have maintained artistic control over the recording process. What mattered, she said, was that Island had a contractual “right” to accept or reject what he produced.

If you’ve been paying attention to the music legal world lately, you know that the whole question of whether or not sound recording deals were “works made for hire” is a multi-billion dollar question right now. In fact, it’s such a big deal that the RIAA had a Congressional staffer named Mitch Glazier sneak four words into a big Congressional bill in the middle of the night when no one noticed making all sound recordings into works-made-for-hire — thus depriving artists of the right to regain control over their copyrights via the copyright termination process (purely as a coincidence, we’re sure, Glazier was officially hired at over $500k/year by the RIAA a few months later — and he’s kept that job ever since). Thankfully, people noticed this underhanded move, and a campaign from musicians forced Congress to fix Glazier’s trick.

The legal issue here is a bit down in the weeds, but effectively, along with copyright extension, Congress does allow content creators to “reclaim” their copyright — regardless of any legal contract saying otherwise — at certain “termination” points. The big exception? If the work in question was done as a “work-for-hire,” and certain types of works were deemed “work-for-hire” in an extremely arbitrary fashion (basically based on who had political clout in the negotiations). I actually think copyright terminations make very little sense, and it’s a weak “response” to ever-lengthening copyright law. A much better solution would be to vastly shorten copyright’s term, and then not have to deal with termination issues. However, the fact that the recording industry fought it so hard shows how their claims of being looking out for the best interests of musicians is pure hogwash.

However, with musicians gearing up to exercise termination rights, and record labels looking for any possible way to keep those rights for themselves — including any possible way to twist the law to say existing works were, in fact, done as work-for-hire. Of course, the fact that they had Glazier slip changes into the law makes it pretty damn clear that they know, quite clearly, that such works were not really work-for-hire.

While I don’t know if there was a specific contractual anomaly with Marley’s contract, the fact that a judge found those works to be “works-for-hire,” suggests that the same may be true of other recording artists’ contracts, and you can bet that the RIAA lawyers are dancing a happy dance with such a ruling coming out. Some musicians, however (you know, the ones the RIAA pretends to represent), may have just had the rights they thought they were about to get back, ripped out from under them.

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Comments on “Bob Marley's Work Declared 'Work For Hire,' Family Can't Get Rights Back”

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35 Comments

Since the recordings in this case were made prior to 1978, the “work for hire” issue was governed by the 1909 Copyright Act, which has a slightly different definition of a work made for hire than the 1976 Copyright Act.

The court opinion can be found at http://www.scribd.com/doc/37357484/Bob-Marley-Fifty-Six-Hope-Road-Music-v-UMG-Recordings-S-D-N-Y-Sept-10-2010

Legal hypocrisy, much?

Since the recordings in this case were made prior to 1978, the “work for hire” issue was governed by the 1909 Copyright Act

So, the 1978 law’s doubling of copyright lengths can be applied retroactively, but its laws protecting artists from bad deals can’t?

That’s just swell. Good job, legal system!

Also, thanks for the link. Aside from the ruling, it’s also a good inside look at a standard recording contract.

Richardsays:

Re:

ince the recordings in this case were made prior to 1978, the “work for hire” issue was governed by the 1909 Copyright Act, which has a slightly different definition of a work made for hire than the 1976 Copyright Act.

If the 1909 act applies then why don’t its term, registration and renewal requirements also apply? (Implying that the copyrights would now have expired since UMG would not have bothered to renew.)

The argument that the 1909 act applies to the contract but not to the term and registration requirements seems to me to be inconsistent.

out_of_the_bluesays:

Corporatists and lawyers can't reason from first principles.

So I’ll lay out what should be.

1) Bob Marley absolutely and always owned the copyright. That it was stolen by a corporation is what’s irrelevant.

2) HOWEVER, Bob Marley (and family) had 28 years to profit from a one-time performance, longer (by 11 years?) than is allowed for patents of useful goods, so all is now in public domain.

3) That leaves the recording masters in question, then and now, because in physical possession by corporation, yet what’s on them was owned by Marley. The contract covers only what’s done to profit from that combination. The masters should now be transferred to a national archive or trust set up for the purpose of public dissemination.

4) Copyright length has to be rolled back from its present “forever”.

Don’t bother to tell me that “the law” isn’t so, and isn’t going to be; only shows that you too have no bedrock principles, no moral compass, are but a hapless pawn of corporations, without even yelping about it.

Re: Corporatists and lawyers can't reason from first principles.

Re: point 4:

I’m mostly of the opinion that the proper length for copyright is the duration of the author’s life. It would be simple enough. It would make it relatively easy to know if something was cleared for use, just look up info to see if the person is dead or not.

I don’t think there’s anything wrong with a person being able to capitalize on a profitable piece of art for their lifetime. It wouldn’t inhibit other advances–especially since the opinion on the net is that people will still create in the absence of any monetary incentive; then what does it matter if one artist does something amazing and vanishes with the cash? Why should it upset anyone that the artist doesn’t have to work? Or how is it bad that some people DO create great work because of a monetary incentive? Supposedly, there will be an unstoppable march toward greatness going on by everyone else in the arts anyway, right?

Also, I don’t really like the idea of copyright being extended down generation to generation. That seems… odd to me. There’s certainly nothing wrong with passing down the accrued income from the original artist’s work, but I don’t know about extending the monopoly on exploitation of the works across generations. It just doesn’t sit right with me.

Of course, the whole “length of author’s life” becomes tricky when you’re dealing with work by multiple creators. A lot of songs now have multiple writers, so whose life are we talking about? I don’t really know of a lot of real world solutions for collaborative works. CC doesn’t seem to really cover the bases, especially on the more experimental ideas (For instance: recording a bunch of different performers for an album, and then making each audio track available for remixing while still allowing each individual creator control over his/her specific contributions–including type of CC license (some ppl are NC, others not, what happens once the pieces are put together?) or traditional copyright… it quickly becomes a legal/logistical nightmare)

Re: Re: Corporatists and lawyers can't reason from first principles.

I don’t think there’s anything wrong with a person being able to capitalize on a profitable piece of art for their lifetime.

Without copyright laws, that person would be able to capitalize on that art. They just wouldn’t be able to prevent other people from also being able to capitalize on it.

Also, I don’t really like the idea of copyright being extended down generation to generation.

You’ll find no argument here.

The lengthy copyright terms theoretically came about because we were complying with European copyright law. However, that law is partially based on droit d’auteur, i.e. “moral rights.” These include rights that are, in the U.S., covered by libel and slander laws. So, part of the reason for “copyright inheritance” was so that the author’s descendants could make sure the author wasn’t slandered after he was dead.

PaulTsays:

Re: Re: Corporatists and lawyers can't reason from first principles.

“I’m mostly of the opinion that the proper length for copyright is the duration of the author’s life.”

I’m not sure I’m 100% in agreement. Take Marley as an example – he died just 1 year after the release of Uprising, containing at least one of his most famous and popular songs. It would be rather unfair that the song suddenly became uncopyrighted due to his sudden death.

However, the current system is ridiculous. I personally prefer the idea of 20-30 years with the option for copyright owners to renew. I would, however, prefer that corporations are not the entity that inherit copyrights from dead artists.

“I don’t think there’s anything wrong with a person being able to capitalize on a profitable piece of art for their lifetime”

As Karl mentions below, copyright is not a prerequisite for this. Copyright is a monopoly. If a work enters the public domain, that doesn’t mean that the original creators cannot profit, it simply means that they can’t stop others from doing so. An important distinction.

It’s also not the guarantee of profit that many mistake it for – even with full copyright protections, you can still make nothing if your “art” is worthless or badly sold.

“Why should it upset anyone that the artist doesn’t have to work?”

Because virtually everybody else has to. There’s no other profession in the world where you can just create one or two pieces of work and then live off those for the rest of your life.

Personally, I’m not upset that some artists manage to create great work and then retire from the profit. What upsets me is the sense of entitlement – that if things are failing, they should still be compensated, that they should be guaranteed a juicy retirement (for themselves and their children) at everyone else’s expense because they had a few moments of inspiration.

Sure, if you manage to do that then all power to you. But, I object to the manipulation of the system, the blocking of new business models, the attempt to control both the way I enjoy my legally purchased content and the internet as a whole, just to provide a welfare system so that you don’t have to work for your income.

That’s the difference. Even under the current system, people get paid for a single piece of work for decades. If you haven’t worked out how to manage that income properly for your retirement and your descendants, that’s not my problem.

“There’s certainly nothing wrong with passing down the accrued income from the original artist’s work, but I don’t know about extending the monopoly on exploitation of the works across generations.”

Again, here, we agree. There has to be a limit – imagine if we still had to pay Shakespeare’s or Homer’s (or even Dickens’) descendants for the use of their art! Not only would people be undeservedly be getting new income from work they had nothing to do with, but imagine how much poorer our culture would be without the many, many “derivative” stories inspired by their works.

Anonymoussays:

Re: Re: Corporatists and lawyers can't reason from first principles.

“then what does it matter if one artist does something amazing and vanishes with the cash? Why should it upset anyone that the artist doesn’t have to work?”

It does matter the whole defense for greater copyrights terms is that it is somehow unjust not to get paid over and over and over again, while this is unheard in the rest of society. Nobody expects payment more then once, but somehow a subset of people think they deserve it.

It breaks the fabric of society, causing conflicts and putting forth the idea that excluding others is a good idea.

Anonymoussays:

I dont understand. Whenever I do any work, I sign something that says what I do is work-for-hire. This is an easy thing to put in a contract. I’m sure the contracts musicians sign are very precisely worded, and if they say it is a work for hire, it is. I see why someone would want to make something a work for hire, and why other people would want to make it not a work for hire, and whether or not it is can be worked out by the parties to the agreement. Why do we have laws and courts deciding things for all contracts on this issue?

MrWilsonsays:

After all, the artist needs to get paid for his work. That’s why we need copyright to exist in perpetuity beyond his own lifespan.

His family? Nah, f*ck ’em if we can find a legal way to wiggle out giving them a cent! If they can learn to play the guitar and get popular, we’ll give ’em a contract and a chance to be exploited like every other musician out there.

RDsays:

Work For Hire? Not unless its explicit

If its not clearly stated that the work was “work for hire” in the contract that he signed, then its not.

PERIOD.

END OF.

There is significant precedent for this in case law, contract law, and at industries like the comics industry, for nearly 100 years. For them to roll this out is not only disingenuous, but potentially fraudulent and a massive abuse of copyright law and the court system.

work for hire

If you go to p.20 of the decision there’s an explanation of the work for hire rules under the 1909 act, which cover the recordings here. The presumptions are basically reversed from those in the 1978 act: generally if somebody else paid for the work to be created, it’s a work for hire. This decision should have to effect on the reversion rights issues coming up with works created after 1/1/78.

sound recordings are not work for hire

This Marley ruling may be jurisdictionally and contractually limited – without knowing what the contract said or where the ruling eminated from, its unclear how it would apply to US record companies and artists.

A U.S. Federal Court ruled that sound recordings are not work for hire (see Ballas v. Tedesco (NJ)) – that case was part of what prompted the sneak attack change in the Copyright Law, which was later reversed… making it clear that sound recordings are not part of the work for hire law.

Under general U.S. case law on what constitutes a “work for hire”, the recordings made under US recording agreements do not qualify.

Changes to Copyright

Mike,

During the Canadian Copyright Consultation I filed a submission in which I advocated making copyrights non-transferable except by inheritance, i.e. the copyright would remain with the creator, or the creator’s heirs. Anyone wanting to use the copyright would have to negotiate with the creator to lease the rights, with the rights being leased for a term of no more than six years, with no automatic renewals allowed.

The point of course being to protect the creator. I was told privately that my suggestion horrified certain people, and that the same people are less than happy that I won’t shut up about it.

You could consider it ‘consumer protection’ legislation for artists from another point of view 🙂

Wayne

I think it’s a shame. Bob Marley has influenced the entire world with his music, which will live on to be rediscovered by more and more generations to come. His work has affected my life and my art so much. I paid tribute to him with a surreal and psychedelic portrait inspired by his words. You can see it on my artist?s blog at http://dregstudiosart.blogspot.com/2011/05/in-memoriam-bob-marley.html

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