Rule Reversal: Blame It on RIAA

The recording industry is changing its tune on artists' copyright law.

Last year the music labels successfully lobbied to insert in unrelated legislation a clause that prevents copyrights from reverting to their authors. Now, they've agreed with artists to recommend rescinding the change to copyright law.

By adding four words -– "as a sound recording" -– deep within the Satellite Home Viewer Improvement Act of 1999, Congress essentially changed the work-for-hire section of the copyright code.

The language adds sound recordings to the categories of artists' work deemed work-for-hire, and therefore not subject to the stipulation that copyrights return to the artist 35 years after first granted.

Since it was passed in November, that change has denied musicians the opportunity to obtain copyrights to the materials they created.

Tuesday's joint agreement between the Recording Industry Association of America and several artist groups will result in the submitting of a recommendation to Congress asking that the language be removed, restoring to artists the rights to their work.

However, any new legislation will not prevent labels from fighting to retain the rights to that work.

"This doesn't mean that the recording industry can't try to keep a sound recording for a compilation or addition to a work as their own," said Jay Cooper, the entertainment lawyer at Manatt, Phelps & Phillips who represented the Artists' Coalition in the negotiations.

"I think the way the copyright law is written, though, the recording industry would be hard-pressed to convince a court that a sound recording is a work-for-hire."

Copyright law allows creators the opportunity to reclaim their work 35 years after the initial copyright is granted. Legislation in the 1976 Copyright Act does lay out certain exceptions, including the work-for-hire clause that lets employers retain the rights to work they have contracted or paid for with salaries and benefits.

Sound recordings were not listed among the nine work-for-hire exceptions, which meant that musicians have always had the opportunity to retain their work.

That means that last year, under copyright law, EMD/Capitol's rights to the Beatles' 1964 release A Hard Day's Night reverted back to the band. But had the new work-for-hire clause been upheld, the record label would have controlled the rights to the record forever.

Both the RIAA and the Artist's Coalition will request that Congress pass the legislation before the end of the year, although it is unclear what that means for albums released since November.

The RIAA hired Mitch Glazier, the chief counsel to the Senate subcommittee that passed the legislation, just three months after the controversial clause was added -- sparking outrage from the music community including artists Sheryl Crow and Don Henley.

Tensions peaked May 25 during testimony in front of the congressional committee responsible for passing the legislation. Without pulling any punches, the head of the National Academy of Recording Arts and Sciences continually referenced what he believed to be the back-room dealing of the recording industry.

"While I am not here to discuss the dark-of-night method in which the amendment made its way into law and the fact that its author, Mitch Glazier, a House Intellectual Property subcommittee staffer, who was later hired by the Recording Industry Association of America -- the lobbying group for the major record conglomerates that stand to benefit the most from the new law -- it is clear that the new law classifying sound recordings as works-for-hire must be repealed," said Michael Greene, the NARAS president.

"It is not a technical change, nor is it one that merely clarifies a long-standing industry practice, as Glazier has repeatedly remarked."

While the recording industry and the musicians presented a united front in issuing the joint announcement, statements made by each group in the release indicate how divisive the issue had become.

For instance, the two parties could barely agree on whether the actual law had ever been changed.

RIAA insisted that nothing had changed and, in a written statement, RIAA President Hilary Rosen reiterated that position.

"We did not intend to change the law and have worked diligently to assure that the issue of work-for-hire is resolved without prejudice to anyone's position," she said in the release.

But the presidents of two artists organizations insisted that the law had been changed.

"The AFM and AFTRA were committed to reversing this change in the law when we discovered it had passed," said Steve Young, president of the America Federation of Musicians in the release.