Songwriters, record labels battling over ownership rights

SAN FRANCISCO -- Don Henley and The Eagles were flying high with chart-topping hits in the 1970s when Henley bought his parents a television with part of his first advance.

These days, however, Henley is busy battling major labels over "works made for hire," agreements in which artists sign away the rights to nearly all music they perform and create under contract.

"When an artist such as myself makes an album, and turns that album in to a major record company, that record company assumes both ownership and authorship of that master," he told The Associated Press.

"They didn't create it. They didn't even pay for it in most cases," Henley complained. "But they claim that they are the author of that particular body of work which is sort of ridiculous when you think about it."

A song-writing copyright is different from a copyright to the mastered sound recording at issue in "works made for hire."

If it's about money for Henley (he says it's not), then there's plenty at stake gauging by the band's lasting popularity. Last year, the Recording Industry Association of America announced that the Eagles stand as the third highest certified group (following the Beatles and Led Zeppelin) of all time. The Eagles have sold 83.5 million albums, according to the RIAA.

Neither Henley nor his record company will say how much money he and the Eagles made during the band's hit-making days.

If Henley ever hopes to see copyright ownership of the master recordings that took the Eagles to the top of the charts, the recording industry's definition of "works made for hire" would need to change.

The U.S. Copyright Office defines a "works made for hire" as one "prepared by an employee within the scope of his or her employment" or "a work specially ordered or commissioned for use as a contribution to a collective work."

The record labels' position is that nearly all sound recordings contribute to a collective work and, unless otherwise specified in a contract, they own the rights to the valuable master recordings indefinitely.

That legal argument is a key element of the recording industry's claims in the Napster case, where record labels have submitted certificates of copyright ownership to the "works made for hire" they are suing to protect.

Henley heads a group called the Recording Artists Coalition, which filed a friend of the court brief in the Napster case, urging U.S. District Judge Marilyn Hall Patel not to accept the industry's broad claims of "works made for hire" authorship.

The artists' coalition wants the labels to submit specific proof of copyright ownership for each work, thus setting the groundwork for future legal battles to determine who truly authors sound recordings produced under contract.

Record labels count on long-term ownership of top-selling songs to create revenue to finance the search for new music and cultivation of new bands. Labels pay to develop artists, rent studio time, and produce and promote successes as well as failures, says Cary Sherman, general counsel for the RIAA.

"It's the rare successes that finance the 90 percent that fail to make it," Sherman said. "Having the ability to capitalize on the catalog of survivors, the catalog of albums that continue to sell, is what makes the system continue to work."

Henley argues that such financial risk is also shared by artists who stake their careers on relationships with major labels such as Sony, Warner, BMG, EMI and Universal -- the Big Five of the record industry.

"We take a risk every time," Henley said. "We risk being dropped from our contract. An artist gets one, maybe two strikes, then you're out. Whereas, record companies go on forever."

Originally, sound recordings weren't considered published material, according to the U.S. Copyright Office. Out of concerns over international piracy, record companies decided federal copyright protections would be to their advantage and sound recordings became eligible for copyright in 1972.

Copyright law was revised in 1976 (becoming effective in 1978) and sound recordings remained covered, but "works made for hire" was included as an exception to copyright expiration.

Rights to sound recordings created under this definition don't have to relinquished by major labels. Sound recordings not falling under this definition can be reclaimed by performers 35 years after first publication.

The pickings for artists looking to reclaim their works may be forever slim if the "works made for hire" definition remains the same.

"Reasonable minds can differ as to whether your typical sound recording qualifies as a work made for hire," said David Carson, general counsel for the U.S. Copyright Office.

An amendment to copyright law was squeezed through in 1999, officially defining sound recordings as "works made for hire." Artists protested the move, even though it had been industry practice for years.

Carson said "works made for hire" was a non-issue until 1999 when the recording industry briefly succeeded in getting copyright law amended to include sound recordings under that definition -- an indication labels were less than willing to relinquish copyrights to master recordings at any future date.

The amendment was repealed in 2000 after Capitol Hill subcommittee testimony from Henley, other artists and legal experts.

Despite the disagreements and uncertain future of the music business, Henley says the changes he seeks are worth fighting for now to benefit other artists.

"I have a son and two daughters who might be in the music business. I don't want them to have to work as hard as I did," Henley said. "These songs that we write are like our children. It's personal."

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On the Net:

Recording Artists Coalition Web site: http://www.recordingartistscoalition.com/

Recording Industry Association of America: http://www.riaa.com