“Termination of Masters”: Bringing New Life To Classic Recordings Or Helping Us Lose Them Forever
Many artists claim that, given the opportunity, they would take back their recordings from their money-grubbing labels. Well, 100s of acts will get that chance soon. Recently, the subject of “reversion of masters” surfaced in the New York Times. But when push comes to shove, many artists might opt to keep their hit recordings right where they are.
This excerpt is based on a chapter from the latest book by industry expert Moses Avalon’s 100 Answers to 50 Questions on the Music Business.
Moses Avalon
While many in the music space have known about the coming copyright Armageddon (known as “reversion/termination of master rights”) for several years, most artists still have no idea exactly what it means for them and what they can do about it. While the idea of artists taking back their classic recordings might seem great, given that many feel mistreated by their labels, my bet is the, “Devil you know is better than the devil you don’t” philosophy, will prevail when the time comes. Here’s why and a brief guide to help with this decision.
FIRST, WHAT IS REVERSION?
The Copyright Act states that after 35 years, the license or transfer of a work to a publisher (or label) can “terminate” and revert back to the original author. Under that law artists who recorded material after January 1, 1978, are eligible to reclaim their masters in the year 2013. (35 years later) If the copyrights were created/transferred in 1979, then they are eligible for reversion in 2014; if created in 1980, they are eligible in 2015; etc.
Sounds simple, but for those that recorded/released prior to 1978 things get a bit more complicated. Copyright law has changed several times from 1972 to the present resulting in several important exceptions to the “termination of masters” provision. For example, because of the change in law that occurred in 1978, artists whose recordings were registered between 1972 and 1978 will need to wait 56 years before they can reclaim their masters; and artists whose masters were recorded before 1972 can never reclaim their masters because — believe it or not — no sound recording copyright existed before 1972.
To make matters even more confusing, the window to submit a “termination of master” claim varies in length for each of the zones listed above. Ugh!
With so many variances in the law, we really need a computer to keep track of what masters will become available. (Isn’t there an app for that?) Especially when one considers that the albums immediately affected are some of pop music’s most successful recordings.
GREAT NOW… HOW DO I GET MY RECORD BACK?
While reversion may sound like the ultimate victory for the artist, keep in mind that without the threat of label litigation, bootleggers will be free to copy any CD like a two-track master and then commercially release the classic recording without significant fear of punishment. If the last ten years has taught the music business anything it’s that regarding copyright infringement: it’s one thing to prove it and quite another to get the money.
Can you imagine several different labels each selling different releases of Pink Floyd’s “The Wall”? (Which terminates in 2013.) Each would sound virtually identical to the original since each would be a re-recording of the same original CD. (Ever bought a bad bootleg by accident and upon listening to it realized that this was just an illegal recording of the recording? No… right… me neither.)
Artists have got to ask themselves this important question before attempting to pry loose the meal-tickets of their labels: What would various releases from sources as legitimate as iTunes or Amazon.com to nefarious ones that could carry viruses, do to consumer confidence when considering a purchase? Imagine the brand starting to deteriorate because of confusion or fear.
And it gets worse: since bootleggers have no direct contact with the artist — no royalties from sales would be paid and it is doubtful they would opt to pay the mechanical either.
And it gets even worse: unless the copyright administrator (which would be the artist by default when the master reverts) sues each and every bootlegger (very expensive) the sound recording copyright could be voided and end up prematurely in the public domain.
So, ironically, reversion — the artist’s right to control their work — could end up causing the deregulating of their copyright and the complete loss of the artist’s control.
Bottom line: before you get too excited about taking back those masters, you need to determine if you have the legal infrastructure and resources to defend the copyright as effectively as the label that has been over the past 35 years.
SO WHAT SHOULD AN ARTIST DO?
In lieu of actual reversion, there are a number of strategies that the artist can employ to turn the situation to their advantage. In my view a clever artist would see this as an opportunity to renegotiate with the label, rather than an outright divorce. In my consulting practice that’s the strategy I’ve been recommending.
Ask the label, “What value are you going to bring to the recordings from this point forward?” With Internet tools so cheaply available, it is clear that you no longer need a label to distribute your music, but you might need a partner to exploit it in new and creative ways. Ask the label for a marketing plan. Or do a P&D deal and flip the percentages; you get 85% and they get 15%.
Remember, unless you have the resources to market, promote, and most importantly, protect your copyrights, you should try to see reversion as an opportunity for negotiating a new deal with your label to bring new life to your hit record.
Spite makes for bad business decisions.
A word of warning: Reversion is a tricky business not to be undertaken without a qualified attorney. So don’t try this at home, kids. If you need an attorney the Moses Avalon Company will get you one of the best. Click here to email me for more information on this.
Mo out
35 responses to ““Termination of Masters”: Bringing New Life To Classic Recordings Or Helping Us Lose Them Forever”
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“unless the copyright administrator sues each and every bootlegger the sound recording copyright could be voided and end up prematurely in the public domain.”
Care to provide a SOURCE for this statement? From where I’m standing, it looks like you’ve confused copyright law with trademark law here.
Sure, Matt. Admittedly, this is an interpretation of law, but one that several lawyers I consult with agree with:
Copyrights are not forever and are not absolute. They were designed to create temporary monopolies so that authors get first dibs to exploit their work. The author gets a limited amount of time to have this right, after which the work becomes Public Domain and cannot, by definition be defamed or regulated.
Like Trade Mark, another way things fall into the Public Domain is “abandonment.” If the author doesn’t want to monetize the work, and does not care how it is used, then in effect abandoning the copyright.
For example, there are already several cases where news articles originally published by main stream outlets, have been re-posted on websites and have been served with infringement notices, only to have the “infringing” sites respond with the defense that the same articles have been re-posted time and again elsewhere without action by the authors and therefore have become Public Domain. The success of these defenses has been mixed (no, don’t ask me to site the case numbers, I don’t have access to Nexus) but even one successful case is enough to create the precedent I outlined in the piece above. In the sound recording world disputes of this nature predate the internet and are more common than you might think.
So, if artists successfully get their master rights back from their labels and then those recordings are bootlegged and the artist does not assert their copyright, you can be sure that this will begin a chain reaction of other bootleggers “piling on,” using the defense above. It does not mean that all of them will win, but the artist will be required to defend EACH AND EVERYONE OF THEM, ($$$) or they risk a court decision that will be unfavorable and certainly devalue their copyrights.
The basic interpretation by the lawyers I talk to seems to be, like Trade Mark, if you do not protect your copyright, you invite the risk of a de facto loss of many of its privileges.
And, if certain folks behind the scenes use offshore entities to destroy the value of indie copyrights, under the safe harbor of the DMCA (I’ve caught it a few times myself using Google to find them), then what are we looking at here? A kind of “reverse extortion” of the Majors saying, leave your stuff with us or suffer the consequences?
Sounds like a “war” is looming. But I’d rather own my stuff completely, then trust the Majors to do ANYTHING to look after my past interests. They’ve already proven, IMHO, beyond any reasonable doubt, that they can’t be trusted in this regard.
Les
This seems like an opportunity for a young, smart and aggressive music biz type to open up shop.
I know as a songwriter and master owner, I am getting some songs back….I would much rather try something new than continue with the old….that isn’t working.
Thanks for keeping us all informed.
California Songwriter Association board member
Two matters of import, at least to my mind, are (1) that the reversion right extends to licenses, and (2) (an issue up your alley Moses) that many labels that have digitally remastered product appear to be taking the position that the reversion right does not apply to the remastered works, calling them “new” sound recordings.
Also, there are some of the same types of practical issues that plague many a clearance effort on the composition side of things – (1) finding who currently owns rights in the masters, (2) determining who are considered the “authors” of the sound recording (e.g., featured artists, producers, etc.), and (3) getting a majority of the original authors to agree and sign onto a Notice of Termination.
Great points Jack. And I’m sure as things heat up in the next year we’ll see some very creative strategies by the majors. On point 2 about “who is the author.” this is the most troublesome for parties on both sides of this issue labels and artists. I did a piece on this in the first installment on this topic. Which you can read here: http://su.pr/2uMLqi
Moses, I have consumate respect for what you do for artists/writers/composers, but I must take exception with: “Bottom line: before you get too excited about taking back those masters, you need to determine if you have the legal infrastructure and resources to defend the copyright as effectively as the label that has been over the past 35 years.”
EMI held my copyrights for years and did absolutely NOTHING to protect them, litigate for them , or sue to protect them. Now, they’ve returned them (dropped claim). So I’m not sure how leaving my other remaining copyrights in label files would benefit me, since I’m the one currently policing each and every one of them. And the remaining labels don’t do much to “exploit” them.
Your thoughts?
Les
Les,
Thanks for your compliments and support.
I have to file this exchange between you and I in the “one size does not fit all,” category. I’m not saying that artists should keep their masters with their labels, and I’m not saying the opposite. I’m saying that each artist has to consider their situation and act accordingly. Clearly artists like Springstine and Pink Floyd will have no problem finding other labels to bid or compete for their masters, but there is no guarantee that the new boss will be better than the old boss.
One has to do a cost/benefit analysis for each scenario. It might cost too much to fight the labels and if they offer another advance to keep the masters, once again, my bet is that most artists will take it.
Ah yes, some may, indeed, keep going back to that Ole Plantation store. However, it’s a sucker bet for this guy. Frankly, the remaining Major Label culprits couldn’t write me a check large enough to keep what’s left. Because, frankly, what they did is steal my material, claim in some cases that it was a “work for hire” (it wasn’t- I wasn’t that stupid). And lock it away in a file cabinet.
One of these Major psychos wanted a $500 fee to let me promote my own song that he publishes and “owns” on You Tube, despite the fact that he’s never exploited it in any way.
Moses, your comments and thoughts are always welcome.
Les
Mo: This is bullshit! You should stop defending record companies. They are criminal organizations, founded by criminals, executed by criminals and now owned by the biggest criminals of all, multi-national corporations. The record business is over, accept it and rejoice that artists are liberated by the Internet where promotion is cheap and control specific. Whose side are you on anyway? I am thrilled that artists no longer need record companies. If they have talent they can win and keep the money. If they don’t they will find out the hard way. Hartmann
Jon,
Take your meds. How is warning artists about the pros and cons of an important decision “defending labels?”
And Jon, really… “criminal organizations?” Aren’t we getting s bit dramatic?
“the record business is over” ??? We must be reading different papers. This past year alone over $400 Million was raised for new start-ups in the music space and Warner was bought for close to $1 Billion over book value.
Can I ask you a question Jon: what do you know that all these millionaires do not?
Perfect response, Mo. I’m not sure where Mr. Hartman is coming from.
Tell me with a straight face this issue will NOT go to the Ninth Circuit/Supreme Court. There’s billions of dollars at stake here and any artist with a catalogue worth even a few dollars is going to try to get their masters back. Furthermore, assuming the artists win (which is a BIG assumption) for every Warner Bros out there currently licensing catalogue, there will 10 new start ups that will be happy to license it with way better terms for the artist. Sort of like how music libraries exploded in the last 10 years. In fact, if you and I were smart, we’d start a catalogue licensing company right now.
Andee Brauer, Esq
Moses, I’m in agreement with Les on this one. I’ve tried to get back masters held by EMI to no avail. I’m convinced they don’t even know what they have in their vaults. Nothing has been done with the albums for way over a decade, so being able to own them again could only be a good thing.
By the way Les, how did you get them back? I was turned into a human ping pong ball by them.
returned to me I gave EMI an “offer they couldn’t refuse”. And the material dated from 1969 thru 1972. I’m afraid I’ll have to keep the details confidential.
Great article, Moses, and great debate. This will be interesting. I’m obviously on the side of the writers on this, but I get a sinking feeling that if major artists yank their catalog, it could hurt everyone.
Everyone keeps talking about a level playing field, and that sure sounded good at first, but look at the mess things are in now. We may have free promo on the internet, etc, but there is so much (lower than) mediocrity out there that it’s almost impossible to rise above the yowling and screeching.
One way to look at it. We’re all so sick of government abuses, it’s so pervasive that it’s hard to know where to begin, to fix it. It makes us want to just rip it all apart and start over. However, can you imagine what would happen if we had no government, even for a month? We’d be attacked from all fronts, so much else would go wrong that we might not survive it. So the solution is to try to force change, rip some of it down, if necessary (it’s necessary) and see what can be done to fix it. I think it’s the same with the music industry.
We’re at a unique place in the music industry, in just about every way, and it’s not a fun place to be. I think knee-jerk reactions, though justified in most cases, are probably a mistake, akin to the attitude, “well, if I can’t have it, I’ll burn down the whole mansion.” What I’m saying is, maybe the labels will be more willing to play ball by some rules, things being the way they are.
One thing Mo is right about for sure, if you don’t have the $$$ to hire the lawyers, it doesn’t matter how right you are. Sad, but true.
On the other hand, as music gets more and more lame (even the COMMERCIALS, I have to leave the room before I hear another SICK kid-sounding voice on these songs and commercials..) great masters will become more and more valuable. Think of it in terms of great old master paintings, there were a limited number of great painters who had staying power…and their prices are through the stratosphere now. It’s not as easy for music, because there’s not just one copy, but value is value, so it’s a subject that bears some strong consideration and outside advice.
I look forward to seeing more on this subject and what the outcome would be. I do think that the major labels should be held to account for the ripoffs and refusal to pay royalties, etc. If they’re still doing OK, they should pay for the privilege of using the work of the artists.
Enjoyed seeing your show the other day, Mo. Cheers, DC
Comments on Don Coyer’s response….
DC: “I get a sinking feeling that if major artists yank their catalog, it could hurt everyone”
Why do you feel this way? It’s the cartel of the Majors that “hurts” everyone. Hard to get airplay, hard to compete.
DC: “there is so much (lower than) mediocrity out there that it’s almost impossible to rise above the yowling and screeching”
I have been heard in spite of this and have the download numbers to prove it. Still, it’s very difficult to be heard. You’re right about that. And there is a lot of mediocrity as well. But, I think that’s always been true, even in the 60’s and 70’s. There’s just more democratic mediocrity now.
DC: “So the solution is to try to force change, rip some of it down, if necessary (it’s necessary) and see what can be done to fix it. I think it’s the same with the music industry.”
Super Nova stars explode and new worlds are born. It happens every day in our Universe. It can and will happen to the Music Industry as well. And I, for one, welcome the changes- the positive ones that is.
DC: “What I’m saying is, maybe the labels will be more willing to play ball by some rules, things being the way they are.”
Keep dreaming….all due respect.
DC: “if you don’t have the $$$ to hire the lawyers, it doesn’t matter how right you are. Sad, but true.”
Then learn copyright law and kick ass and take names. I have. To thine own self, act responsibly. I beat EMI without hiring a lawyer. You can prevail too. Try some
faith in your own self reliance.
DC: “I do think that the major labels should be held to account for the ripoffs and refusal to pay royalties, etc”
I do hold them accountable. That’s why they love to hear from me! LOL
DC:”If they’re still doing OK, they should pay for the privilege of using the work of the artists.”
Actually Don, the richer they get, the less they pay.
Cordially,.
Les
I gotta say Les, unless you’re willing to teach us a thing or two about how you got your masters back from EMI, it’s not fair to shove it in people’s faces with the “I did it so can you,” speech. Share some details or please find another line.
The difference is, now there is nothing but mediocrity. True, there has always been good and bad, but where’s the good now? I’d love to see it. I do see a glimmer now and then, a wisp of a good song, but these bands, if they do have something worthwhile at all, don’t have any money behind them to do more than pop their heads above water for a second, and then they vanish.
As to learning copyright law, I have made a study of it and many other aspects of the business side of the music biz. The result is, because of having to learn to be an engineer, learn new software, learn how to keep up with constant changes in the computer world, follow blogs to stay abreast of trends and everything else, and deal with a new world where DUI laws and other problems in this country have killed our support system, the bar business, which is the only way most musicians can keep going long enough to create original music….I have little time to create.
I agree, it was time for a change….but every time things change, it’s not in the way we hope for. If we could be people out of the COPYCAT mode, that would probably help more than anything.
“The richer they get,” Yes, I’m sure that’s true. But unlike in the past, people like us know their game, it’s all been blown open and the crap they pull that they didn’t want us to know about is all out in the glaring light, so that does give us a weapon,
DC wrote:
“t’s all been blown open and the crap they pull that they didn’t want us to know about is all out in the glaring light, so that does give us a weapon,”
Well then, you have your answer.
Les
That’s no answer. Nobody denies that record companies have ripped people off in a huge way in the past, with unpaid royalties, or no royalties at all. ANY business, car mechanics, the US government, you name it, will take advantage of people’s ignorance, they’re not going to tell you you are screwing up when they are trying to make money off of you. We still have to deal with car mechanics, the government, etc.
Nobody can force you to sign a deal, or bargain away your royalties. I believed, at first, the many still do, the fable about “leveling the playing field.” My point was, I’ve seen the results of that, and I’m not impressed. Mostly, all I see is amateurs putting out songs, and a few who are almost pro (and a few who really are great, to be honest, but that’s just as rare as it ever was) but what I was saying is, “leveling” the playing field has only made artist visibility almost impossible.
Personally, I wouldn’t trust a major label, or an indy any more than I would trust anyone who comes at me with a contract. It’s up to me (and you) to get a good lawyer and make sure things are on the level. I wish there were a way that nobody needed labels, but I still forsee that if that happens, and it’s almost happened, hardly anyone will rise above the masses of crappy talent. We’re still in a service industry here, basically, even though we’re artists, and if things are too difficult for the fans (customers) they won’t be bothered, especially in this time when everyone supposedly has ADD. If they’re having to browse through 50 million artists, they’ll either get side tracked, or bored.
So, how does my reply shed light on how you got your masters back? It doesn’t.
The sad realty is that without Majors talent would not have a chance to rise above the din of mediocrity that the DIY movement has created. Instead we have (and will have) more people becoming famous for shorter periods of time. I think someone smart predicted that back in the 1970s. Yes, this is what Andy Warhol said back then. It’s been truncated in the “five minutes of fame,” monicker. but the actual quote is remarkably accurate.
We can blah, blah all day about the crap Majors sign but they did develop some amazing acts too. If we’re going to “level the playing field” then lets be fare to what the un-level playing fieled has done for us.
Have to agree Don, I think the ‘level’ playing field (which isn’t at all level) is just a result of recording and promotional tools that didn’t used to exist. It has resulted in a phenomenal amount of crap. I keep saying these people have no real friends or else someone would tell them their clogging the airways with junk. It’s like there’s been some sort of massive growth in narcissistic personality disorder.
I’m still none the wiser when it comes to getting masters back from the big labels, but someone did mention to me not that long ago that there may be some leverage in the fact that they are stopping artists / businesses from doing business by holding onto rights they themselves aren’t exploiting. Moses is there a term for that?
I didn’t get “masters” back. I got 1970 thru 1972 song publishing back. 24 titles in all. Including 3 hits. I still have to have a chat with Universal and Sony for “Masters” returns. And it’s going to be more difficult. But I’m prepared.
“Can you imagine several different labels each selling different releases of Pink Floyd’s “The Wall”? (Which terminates in 2013.)”
Pink Floyd already own the rights to “The Wall” and all their other albums recorded after 1973, starting with “Wish You Were Here”.
“believe it or not — no sound recording copyright existed before 1972.”
There was no national/federal copyright for sound recordings before 1972, but sound recordings were proteced by common law and state (copyright) laws.
Don’t think your right about that. The recorded masters are owned by Capitol if memory serves.
And as for common law protecting the masters, that applies to them as “physical property” I think, not as intellectual property. I don’t know of any state civil cases for intellectual poverty where recordings are concerned that predate 1972.
Moses
Thanks for leading the discussion. I came across the following paper when researching the myriad of state protections (or lack there of) for pre-1972 sound recordings. I wanted to share this in case anyone on here was looking for a thorough overview of the current legal landscape regarding this issue.
The paper discusses the sound recording laws in ten states, breaking them down into criminal/civil antipiracy statutes as well as the history of common law causes of action including unfair competition, and misappropriation.
http://www.clir.org/pubs/reports/pub146/body.htm#_ftn56
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Some artists are now using creative commons licensing for their recordings, rather than copyrights. This allows others to copy and share their music and hence get a wider audience than would be typical for a local band.
What is your take on that aspect of the music business?
My understanding of Creative Commons (“CC”) licensing is that it is not an alternative to “copyright” or to licensing your copyright materials. If you create something and put it into a tangible medium of expression, you are, with the exception of works-made-for-hire, an original author and copyright owner of the work. CC is a way for you to make your copyright materials available to others via one of the CC standard license agreements. The CC license you choose determines what free uses can or cannot be made of your work under the CC license you are granting. You retain your copyright in the original work. Anyone choosing your license (i.e., the licensee) will obtain a license as long as your copyright lasts. Licensees must comply with the terms of the license and CC attribution requirements or the license may be terminated. If you, the licensor, decide to no longer make your copyright works available under a CC license, you may withdraw from CC licensing, however all licenses previously granted are not affected and continue.
CC offers six different form license agreements that range from allowing others to remix, tweak, and to build upon your work and to make derivative uses of your work for commercial and/or non-commercial uses to licenses that only allow non-commercial uses, all the way down to a very restrictive license that only allows others to download and share your works (without any changes to your work).
There are a number of concerns that I have about CC licenses and I suggest that anyone considering using the same study the CC materials and/or ask a music lawyer to review specific matters with you.
(1) The CC licenses specifically indicate that other persons’ publicity and/or privacy rights are unaffected. This could be critical to licensees, as the CC licenses contain a broad disclaimer of representations and warranties by the licensor as well as a broad limitation on liability (works are licensed “as-is” with no warranty of title, etc.).
(2) In some jurisdictions, compulsory license schemes are non-waivable and the licensor retains the exclusive right to collect royalties from licensees. In some jurisdictions they are waivable.
(3) If you do not like the way a licensee has used your work too bad. Your remedy is to require removal of your name (credit). A lot of help that is if everyone knows the work is yours.
(4) Finally, the practical issue for co-authors of copyright. Five band members co-author a song. The band engages a producer to record and produce the song and also bring in a third party percussionist for the recording. You have joint-authors of the underlying composition and of the master. My understanding is that the law in the U.S. is that any co-author has a non-exclusive right to license the work (with the exception of an exclusive license) without the consent of the other authors. One member of the band issues (on behalf of all authors) a broad rights CC license, which angers the rest of the band. Trouble in paradise.
For those visiting this site who are unfamiliar with our practices, I “approved” this comment only to be democratic. I do not agree with it, nor do I agree with the poster, “John’s” overly benign explanation of it’s applications. For example, “John” states none of the dangers of a CC licence, of which there are many, since it has not yet been tested in Federal court, as to what rights the Author is waving by entering into a CC licence. Espcially when it comes to music, since ther a compulsory presidents involing the licensing of music: so denying a licence to one person, once granted to another, might not be possible. Thus a CC license could, in some interpertations be a de facto Public Dominionization of the copyright.
Moses: Point well taken. My comment was meant to address Martin’s “rather than copyrights” comment, to give a summary overview of CC licensing, and to point out a couple of the rather obvious pitfalls in such licenses. I assure you that I have never, and probably would never advise anyone to issue a CC music license.
I never did see a purpose in granting a CC music license of any kind. There is nothing in such licenses (except a pre-drafted form which may not be in one’s best interest) that cannot be achieved by issuing one’s own license under terms and conditions dictated by the rights owner.
Right on.
Readers of this page should also know that Creative Commons is the brain child of Larwence Lessig, the intellectual puppet of the Coppy-left movement; a movement sponsored entirely by the Tech-Industry in the early 2000s to convince the public that copyrights were being abused by Big Content (Movie Studios and Record Lables). They push for the erosion of copyrights, but only as it pertains to entertainment content like movies and music, but not as it would apply to softwear and computer code. That, they belive should be protected. What a shock.
Actually, a new “trend” that I witness, with respect to me, is that I submit for “radio play” or “podcast play” and these lunatics post a Creative Commons “license” on the blog, “inviting everyone to share the music”. I’ve since done a coup;e of DMCA takedowns. But I still search for these every couple of days.
That said, I now include specifically, a notice with ALL submissions that any and all of my material is NOT available under CC license.
Additionally, a new thing I spotted and stopped is: they pinch your stuff off of YouTube, and cross reference it under every combination of “Tags” that are on the video. This creates a real headache. Stopped this as well. Warned them that any and all links, even ones containing variations. I used this language and it works:
“All links must be removed, whether by direct search by name, search by Video Tag(s) or any combination of terms, words or search engine terms and words thereof including, but not limited to Tag, tags, words, terms, search tags, search terms, search engine results, names, proper names, Trademarks, etc. (“The Search Terms” and “The Links”).”
Why would anyone do that when people are going to “share” it anyway? A lot of people will….if they like it. And I don’t think people respect something nearly as much if it’s free. If you go buy a record, you will definitely listen to it, to feel like you got your money’s worth.