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Hitting Replay

The Journal Record - October 27, 2011

By Jay Shanker

Saturday Night Fever was a hit soundtrack in 1978 (remember the Bee Gees?). Thirty-five years later, record labels and music publishers may get a different kind of Night Fever as copyright laws invite composers and performers to recapture ownership of some recordings and songs.

This creators’ dream (and potential nightmare for labels and publishers) arises from the 1976 U.S. Copyright Act, implemented in 1978, under which “creators” can terminate certain copyright licenses after 35 years – with first reversions looming in 2013. A two-year advance notice requirement for “recapture” means many old contracts are coming out of storage for review.

Artists like Bob Dylan, Bruce Springsteen, Billy Joel and The Eagles stand to reclaim rights worth millions on songs still as popular on iTunes and XM radio as they were in record stores and on AM/FM radio airwaves when released. Those with leverage will be able to renegotiate current contracts, or terminate them and make new deals for digital downloads and licensing their vintage catalog (and later works, as the clock ticks forward) for film, TV, commercials and new media not imagined in 1976. With music industry revenues in a tailspin already (hello iTunes, singles and file sharing; bye-bye albums and CDs), this comes at a precarious time.

Labels and publishers are unlikely to give up without a fight, arguing that “recapture” is a right of the “creator” of a work, but a company that hires artists to write or perform a song or recording is the statutory “author” under copyright law, and the resulting “works for hire” or “specially commissioned works” are not subject to artist recapture.

Those who wrote and performed these songs, often self-produced their sessions, and delivered completed songs and recordings to publishing companies and labels, will of course claim authorship of such materials. Meanwhile, the labels and publishers who paid recording costs plus record and publishing royalty advances will posit they are the rightful “authors” under copyright law. These cases may consequently turn on contract language that varied deal-to-deal, signed long before the 1976 copyright law was enacted.

Record and publishing companies’ cry to Congress for relief has met with deaf ears. “Who’s the author?” may consequently be the new multimillion-dollar copyright question as contracts that are not renegotiated get adjudicated.

MTV meets Court TV, anyone?

Jay Shanker is an entertainment lawyer with McAfee & Taft.


This article appeared in the October 27, 2011, issue of The Journal Record. It is reproduced with permission from the publisher.
© The Journal Record Publishing Co.