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The Record Industry Is In Even More Serious Trouble Than We Thought

By Alyssa Rosenberg on August 17, 2011 at 8:38 am

"The Record Industry Is In Even More Serious Trouble Than We Thought"

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The New York Times spotlights a big development for the music industry: under a provision of American copyright law, artists are about to start being able to reclaim the rights to their catalogues as long as they get their applications in on time:

“This is a life-threatening change for them, the legal equivalent of Internet technology,” said Kenneth J. Abdo, a lawyer who leads a termination rights working group for the National Academy of Recording Arts and Sciences and has filed claims for some of his clients, who include Kool and the Gang. As a result the four major record companies — Universal, Sony BMG, EMI and Warner — have made it clear that they will not relinquish recordings they consider their property without a fight.

“We believe the termination right doesn’t apply to most sound recordings,” said Steven Marks, general counsel for the Recording Industry Association of America, a lobbying group in Washington that represents the interests of record labels. As the record companies see it, the master recordings belong to them in perpetuity, rather than to the artists who wrote and recorded the songs, because, the labels argue, the records are “works for hire,” compilations created not by independent performers but by musicians who are, in essence, their employees.

Independent copyright experts, however, find that argument unconvincing. Not only have recording artists traditionally paid for the making of their records themselves, with advances from the record companies that are then charged against royalties, they are also exempted from both the obligations and benefits an employee typically expects.

I’ve always found the argument that downloading music rather purchasing it is a form of sticking it to the man kind of specious. And I wonder how long it’ll last as artists start getting the rights to their own work back. It’ll also be interesting to see if this makes the recording industry even more conservative, willing to fund only acts that it thinks will pay off big for them for the years that they own that work, or if it’ll make them more willing to experiment on music that won’t be a death blow when it’s gone. I also don’t know if there are artists who would want to do this, but I’d be curious to see if any labels experimented with making artists actual employees, paying them salaries and benefits and taking care of their Social Security withholding, in exchange for full rights to their work. If you want to work in a genre that generates steady but not wild profits, that might actually be a good deal for some artists and some labels — I don’t think there will be a ton of folks who fall into that sweet spot, but there might be some.

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