Archive for the ‘copyright’ tag
If you recall, for a while I blogged the requests I received to use my art without compensation. I’ve been lax in documenting them lately, but make no mistake, not a month doesn’t go by without someone requesting something, sans payment.
Obviously, this is a frequent problem. Tim Kreider begins his rant on the subject thus:
NOT long ago, I received, in a single week, three (3) invitations to write an original piece for publication or give a prepared speech in exchange for no ($0.00) money. As with stinkbugs, it’s not any one instance of this request but their sheer number and relentlessness that make them so tiresome. It also makes composing a polite response a heroic exercise in restraint.
People who would consider it a bizarre breach of conduct to expect anyone to give them a haircut or a can of soda at no cost will ask you, with a straight face and a clear conscience, whether you wouldn’t be willing to write an essay or draw an illustration for them for nothing. They often start by telling you how much they admire your work, although not enough, evidently, to pay one cent for it. “Unfortunately we don’t have the budget to offer compensation to our contributors…” is how the pertinent line usually starts. But just as often, they simply omit any mention of payment.
A familiar figure in one’s 20s is the club owner or event promoter who explains to your band that they won’t be paying you in money, man, because you’re getting paid in the far more valuable currency of exposure. This same figure reappears over the years, like the devil, in different guises — with shorter hair, a better suit — as the editor of a Web site or magazine, dismissing the issue of payment as an irrelevant quibble and impressing upon you how many hits they get per day, how many eyeballs, what great exposure it’ll offer. “Artist Dies of Exposure” goes the rueful joke.
(click here to continue reading Slaves of the Internet, Unite! – NYTimes.com.)
Mr. Kreider continues:
I’ve been trying to understand the mentality that leads people who wouldn’t ask a stranger to give them a keychain or a Twizzler to ask me to write them a thousand words for nothing. I have to admit my empathetic imagination is failing me here. I suppose people who aren’t artists assume that being one must be fun since, after all, we do choose to do it despite the fact that no one pays us. They figure we must be flattered to have someone ask us to do our little thing we already do.
I will freely admit that writing beats baling hay or going door-to-door for a living, but it’s still shockingly unenjoyable work. I spent 20 years and wrote thousands of pages learning the trivial craft of putting sentences together. My parents blew tens of thousands of 1980s dollars on tuition at a prestigious institution to train me for this job. They also put my sister the pulmonologist through medical school, and as far as I know nobody ever asks her to perform a quick lobectomy — doesn’t have to be anything fancy, maybe just in her spare time, whatever she can do would be great — because it’ll help get her name out there.
and then concludes with a more succinct version of the refusal than one I linked to a couple years ago:
Here, for public use, is my very own template for a response to people who offer to let me write something for them for nothing:
Thanks very much for your compliments on my [writing/illustration/whatever thing you do]. I’m flattered by your invitation to [do whatever it is they want you to do for nothing]. But [thing you do] is work, it takes time, it’s how I make my living, and in this economy I can’t afford to do it for free. I’m sorry to decline, but thanks again, sincerely, for your kind words about my work.
Feel free to amend as necessary. This I’m willing to give away.
A/k/a Black Card Magazine wants free Photos.
I’ve gotten lazy about blogging the periodic requests to use my photos in a commercial setting without compensation. I have no concern with websites or blogs using my photos, even quasi-commercial sites like Chicagoist, Curbed Chicago, or the like, as long as these usages don’t require payment to view. In my reasoning, I get benefit from such exposure, not to mention I read most of these sites anyway, or could. However, printed use is different: the targeted audience has to pay a fee to read the magazine or book, thus I should get a slice of the pie. Does this make sense?
There have been several such inquiries since I last mentioned the subject, such as yesterday, when I received this email, marked URGENT.
I work as a writer for Black Card magazine. We are doing a feature on America’s Best Street Foods and we want to feature The Wiener’s Circle in Chicago.
They don’t have any images of their hot dogs, but I found the one on your flickr page. Was wondering if you might be willing to let us publish it in exchange for a photo credit in the article and a free copy of the magazine?
We are on an urgent deadline.
My first reaction was irritation at the forced urgency. Why do I have to rush to respond? I’m not the one who waited until the last minute to secure photographic rights for a story assigned months ago. An admission: I’m that guy on the highway who slows down when drivers tailgate me. Especially if I’m driving by myself, I’ll block irritating drivers from passing me for twenty minutes (alternatively slowing down and speeding up, as traffic changes) or longer. Unless you have a flashing siren on your vehicle, I doubt sincerely your time is any more valuable than mine, and no, I won’t get out of your way if you are rude. Of course, if Illinois caves in, and allows concealed handguns to be carried, I may alter my behavior. Probably not though. I hate being told to hurry up. I have enough deadlines of my own without incorporating yours as well.
Secondly, Black Card Magazine is a trade publication solely for the upper echelon – for instance, American Express’s Centurion Card, which requires cardholders willing to pay an annual fee of $2,500 just to have the card, plus a $7,500 application fee. Not for the peons, in other words. American Express had an operating income of $33,800,000,000 last year, I think they could afford to pay photographers if they chose to.
So I replied that I would be happy to allow one-time usage of my photograph for the fee of $800. I’m not holding my breath for a response (it’s been 24 hours).
While on vacation, I received this email:
Hi Seth, As with many, I am captivated by the quality of your work!
I am a professor writing an ebook on “Chasing Wisdom” and would like your permission to use your work entitled “Gate – Buckingham Palace” as a photograph in my book.
I propose the following credit line: Photograph used by permission. Copyrighted by Seth Anderson.
Of course, please propose a credit line of your preference if you so choose.
Thank you for your consideration. My normal rate is $800 (US) for a one-time usage fee. If this is something you would consider, please send me a purchase order, and I’ll invoice you and send you the image.
Please consider that I am self-employed, and responsible for all my own costs (health insurance, electricity, and so on), and thus am not interested in working without compensation.
I’ve written more on that topic a few times, including here:
An ebook often has lower costs associated with its creation, perhaps I would consider a lower fee as well, but we shall see if I get a response. Ideally, I would take the time to create a form letter from these various requests, but I never seem to get around to it.
Parenthetically, the referenced photo is ok, but I wouldn’t call it one of my favorites. I’m sure there are many, many similar photos of the Buckingham Palace Gate taken every day.
Thank you very much for your reply. Unfortunately, there is not budget for such permissions. I’ll look for another source.
I have a Google alert for the Haymarket Riot, so noticed that the Atlantic blogged about it. Unfortunately, for some reason, some one else was credited for use of my photo.
If you look at the photo, it still has my copyright embedded in the EXIF data, and there is my signature! I wonder if this guy has used my photo elsewhere too?
I contacted both the author, Emily Badger and Yoni Goldstein. Let’s see how long it takes to correct the record.
Here is the original photo…
Asking me to give you my photo for free is not about the money, really, it is about the respect that currency is afforded. If you are asking me for my photograph for free, you are not respecting my art. Not always, but usually, free goods and services are considered of lesser value than goods and services you pay for.
Imagine a world renowned chef going to his corner grocery store – not a chain grocery store, but a small independently operated grocery store, or even better, a booth at a Farmer’s Market – and asking for free produce.
The chef says, “I’m planning on creating a prix fixe event at my restaurant, and sell reservations for $150 each, plus tip and beverage, tax and so on. There will be 13 dishes served in all, and I’d like to feature your delicious organically grown carrots in one or two of them. I won’t pay you a dime, but on the menu, I’ll mention where the carrots were grown, if I have room.”
Would you accept this deal? Would this pay for your growing costs? Your water? Your soil? Your time pulling weeds? For renting a booth at the Farmer’s Market? For your crop growing expertise? Granted the chef has put his own labor into the menu, and he could get flavorless carrots from Costco instead of using your carrots, but would mentioning your name be enough compensation? Would you get business from the guests who went to the restaurant and happened to notice your name in small print?
I say no, and would politely tell the chef to grow his own damn carrots.
Back to the topic on my mind, a couple of months ago, I got a request for usage of this photo:
Borscht – Russian Tea Time – not sure how this goes with hockey, maybe some Russian connection?
The email read…
I would like to feature one of your Flickr photos in my new hockey book. I’m very impressed with the quality and spirit of your photos – they would look great in print!
About me: I am an established sports writer from Toronto. This will be my eighth hockey project. My others include [REDACTED list of 7 books]. My next book, [REDACTED], will focus on NHL team history and fan culture. It will be in stores in the fall of 2012.
In order to use your image, I will need confirmation that the photo was taken by you. In exchange for permission to use your photo, I will of course formally credit you in the book and can also recommend your work on Flickr, your blog, Linkedin, etc. Please just let me know exactly how you’d like your credit to appear (usual format: Name/Flickr).
Please let me know as soon as possible, as my deadline for your approval is in the next couple of weeks. If you are willing to grant permission and release for your photo, I would need you to please provide an original high-resolution version of the photo along with notification of your permission to reproduce and publish the image.
I am happy to provide more details, so please don’t hesitate to email me with any questions.
Yes, I took the photo (at a Russian Tea Room in Chicago). My normal rates for inclusion in a book is $800 (US), plus a copy of the finished work. At this stage, working for free does not interest me, as I have to eat, pay health insurance, pay for my photo equipment and so on.
If you are interested in using my photo in your book, please send a formal request to my business partner at the following address:
and I’ll send you a purchase order, followed by a high resolution version of the image.
I never heard back from Mr. Hockey, I guess free was the only price he was looking for. And to be honest, this probably isn’t the best photo of borscht out there…
Another entry into the continuing series of I’m not giving you something for nothing. The previous entry has more back story if you missed it. Today’s requestor was more upfront with what he wanted, and that there was no money available, even though he’s being paid to create the book. For the record, I am not offended on being asked to use my photos, it is some sort of low level honor.
Here is the email, with personal information removed. I’m not trying to embarrass the requestor, usually, just document it.
My name is [REDACTED] and i am a writer and comedian (please check out [REDACTED}, google me,or check out my work for [REDACTED high profile blog].
I have a humor book coming out through my publisher, [REDACTED], which will feature funny/cute pictures of kittens and cats. Would you potentially be interested in having one of your photos in the book? Unfortunately, there is no pay. But you will receive photo credit (but will have to remove watrermark), a free copy of the book, and a very fun book to share with your family and friends. If you’d like to see what the book will be similar to, visit Amazon and search for [REDACTED funny title], or [REDACTED] –the prequels to this book featuring pictures dogs and kids.
Of course, it’s not guaranteed that a photo will be used, but i really liked your photos (especially cat in fridge ) and think you’d probably get in.
If you’re interested, please email me directly at [REDACTED email]. I will also need to you to eventually send me an attached hi-res photo as well.
I responded, trying to be a little funny:
No thank you, I’ve decided I like to eat more than I like to see my name in a photo credit. For some reason, my bank will not accept photo credit as legal tender.
Thanks anyway, and good luck.
Cheerio, Seth Anderson
The requestor cheerfully responded:
I completely understand :). thanks for getting back to me.
Not all requestors are snotty…
Note, this interaction occurred prior to me reading this form letter.
At the end of yesterday’s post, No – You Cannot Use My Photographs for Free, part 86, I mused aloud about creating a form letter for rejecting future requestors. Noah Vaughn, a Flickr and Twitter pal, kindly left a comment pointing to an open letter posted by Photoprofessionals, which I’m thinking could be adapted to for my usage requirements…
As professional photographers, we receive requests for free images on a regular basis. In a perfect world, each of us would love to be able to respond in a positive manner and assist, especially with projects or efforts related to areas such as education, social issues, and conservation of natural resources. It is fair to say that in many cases, we wish we had the time and resources to do more to assist than just send photographs.
Unfortunately, such are the practicalities of life that we are often unable to respond, or that when we do, our replies are brief and do not convey an adequate sense of the reasons underlying our response.
Circumstances vary for each situation, but we have found that there are a number of recurring themes, which we have set out below with the objective of communicating more clearly with you, and hopefully avoiding misunderstandings or unintentionally engendering ill will.
(click here to continue reading Professional Photographers | Reasons Why Photographers Cannot Work for Free.)
I especially like point 7:
Getting “Credit” Doesn’t Mean Much
Part and parcel with requests for free images premised on budgetary constraints is often the promise of providing “credit” and “exposure”, in the form or a watermark, link, or perhaps even a specific mention, as a form of compensation in lieu of commercial remuneration.
There are two major problems with this.
First, getting credit isn’t compensation. We did, after all, create the images concerned, so credit is automatic. It is not something that we hope a third party will be kind enough to grant us.
Second, credit doesn’t pay bills. As we hopefully made clear above, we work hard to make the money required to reinvest in our photographic equipment and to cover related business expenses. On top of that, we need to make enough to pay for basic necessities like food, housing, transportation, etc.
In short, receiving credit for an image we created is a given, not compensation, and credit is not a substitute for payment.
Photographer at Work – Tri X 400
and point 8:
“You Are The Only Photographer Being Unreasonable”
When we do have time to engage in correspondence with people and entities who request free photos, the dialogue sometimes degenerates into an agitated statement directed toward us, asserting in essence that all other photographers the person or entity has contacted are more than delighted to provide photos for free, and that somehow, we are “the only photographer being unreasonable”.
We know that is not true.
We also know that no reasonable and competent photographer would agree to unreasonable conditions. We do allow for the fact that some inexperienced photographers or people who happen to own cameras may indeed agree to work for free, but as the folk wisdom goes: “You get what you pay for.”
and point 5 expands what I tried to tell Requestor Number 86, and says what needs to be said more forcefully:
We Have Real Budget Constraints
With some exceptions, photography is not a highly remunerative profession. We have chosen this path in large part due to the passion we have for visual communication, visual art, and the subject matters in which we specialise.
The substantial increase in photographs available via the internet in recent years, coupled with reduced budgets of many photo buyers, means that our already meager incomes have come under additional strain.
Moreover, being a professional photographer involves significant monetary investment.
Our profession is by nature equipment-intensive. We need to buy cameras, lenses, computers, software, storage devices, and more on a regular basis. Things break and need to be repaired. We need back-ups of all our data, as one ill-placed cup of coffee could literally erase years of work. For all of us, investment in essential hardware and software entails thousands of dollars a year, as we need to stay current with new technology and best practices.
In addition, travel is a big part of many of our businesses. We must spend a lot of money on transportation, lodging and other travel-related costs.
And of course, perhaps most importantly, there is a substantial sum associated with the time and experience we have invested to become proficient at what we do, as well as the personal risks we often take. Taking snapshots may only involve pressing the camera shutter release, but creating images requires skill, experience and judgement.
So the bottom line is that although we certainly understand and can sympathise with budget constraints, from a practical point of view, we simply cannot afford to subsidise everyone who asks.
I may not make my sole living from photography, but I do make some money from it, and all the money and more is invested in the art. I know my attorney charges me for each and every thing possible, for photocopying forms, for sending letters in the mail, and so on, and I gladly pay. There are lots of small expenses that add up – health insurance, internet fees, L & P fees, you get the idea.
I am going to start documenting all the requests I get from people wanting to use my photographs for free, and their responses. This is a fairly regular occurrence – usually a dozen1or so times a year – every year – I’ll get an email, mostly via Flickr. Nearly always the request starts with the same basic initial thought: “I’m so and so, and I’m working on a book or some other project, and I want to have your photograph, for free, even though I plan on selling the finished project. I’ll give you a photo credit though.”
Yesterday I got this request:
I am currently working with several photographers, manipulating their images digitally to create artistic representations for a deck of cards that I am creating & publishing. I would very much love to use this image of yours in my deck. Would you please consider granting me permission to use the image? Full credit will be given to each photographer who’s work I feature in the deck, and this deck will be sold and distributed globally to card-readers, students and collectors.
If you’d like to see the progress of the deck so far, you can do so on my Facebook Page: [REDACTED]2
Anchor Baby – the photo in question
if you are planning on selling your deck, we’ll need to work out some sort of compensation arrangement, or royalty agreement. I’ve gone as low as $800 (U.S.) in the past.
Should I send you an invoice?
I actually have gone much lower – especially if the project is good or interesting, or the requestor is polite. Occasionally I have even given away one time usage of my photograph for free, but I don’t do that often. If this is a commercial endeavor, I should be compensated for all the time I took to snap the photograph, manipulate the photograph in my digital darkroom, upload to the web, etc. not to mention my equipment, computer, software, camera, lens, and so on. Again, not to be a jerk, but if you think your work is worthy enough to sell, well then, so should mine be worthy enough. I may not make my living as a professional photographer, but I’m not independently wealthy. I like having coins in my pocket.
The requester responded, rather snottily:
None of the other photographers are asking for royalties. Credit and getting their name attached to this global project was all that was required.
No, sorry, i am not willing to pay. I have other options, many other photographs, many other photographers who want recognition…
Well, isn’t that peachy.
I couldn’t help myself, and emailed back:
Hard to pay my landlord with photo credits, thanks for understanding.
Ideally, by documenting this reoccurring request, I’ll hone my responses so they are a little wittier. I really should create a form letter that I could work off of.Footnotes:
Francis Ford Coppola is simply repeating what he has said before, Francis Ford Coppola Sees the Future For Artists, and Francis Ford Coppola Finances His Movie With Wine because it seems like the truth. Mick Jagger and David Bryne concur, btw: Mick Jagger and Internet Piracy and Death of the Music Industry, Rolling Stones Edition
How does an aspiring artist bridge the gap between distribution and commerce? We have to be very clever about those things. You have to remember that it’s only a few hundred years, if that much, that artists are working with money. Artists never got money. Artists had a patron, either the leader of the state or the duke of Weimar or somewhere, or the church, the pope. Or they had another job. I have another job. I make films. No one tells me what to do. But I make the money in the wine industry. You work another job and get up at five in the morning and write your script.
This idea of Metallica or some rock n’ roll singer being rich, that’s not necessarily going to happen anymore. Because, as we enter into a new age, maybe art will be free. Maybe the students are right. They should be able to download music and movies. I’m going to be shot for saying this. But who said art has to cost money? And therefore, who says artists have to make money?
In the old days, 200 years ago, if you were a composer, the only way you could make money was to travel with the orchestra and be the conductor, because then you’d be paid as a musician. There was no recording. There were no record royalties. So I would say, “Try to disconnect the idea of cinema with the idea of making a living and money.” Because there are ways around it.
(click here to continue reading Francis Ford Coppola: On Risk, Money, Craft & Collaboration :: Articles :: The 99 Percent.)
It’s of course perfectly standard for members of Congress to not be exceptionally proficient in technological matters. But for some committee members, the issue did not stop at mere ignorance. Rather, it seemed there was in many cases an outright refusal to understand what is undoubtedly a complex issue dealing with highly-sensitive technologies.
When the security issue was brought up, Rep. Mel Watt of North Carolina seemed particularly comfortable about his own lack of understanding. Grinningly admitting “I’m not a nerd” before the committee, he nevertheless went on to dismiss without facts or justification the very evidence he didn’t understand and then downplay the need for a panel of experts. Rep. Maxine Waters of California followed up by saying that any discussion of security concerns is “wasting time” and that the bill should move forward without question, busted internets be damned.
The fact that there was any debate over whether to call in experts on such a matter should tell you something about the integrity of Congress. It’d be one thing if legitimate technical questions directed at the bill’s supporters weren’t met with either silence or veiled accusations that the other side was sympathetic to piracy. Yet here we are with a group of elected officials openly supporting a bill they can’t explain, and having the temerity to suggest there’s no need to “bring in the nerds” to suss out what’s actually on it.
“No legislation is perfect,” Rep. Watt said at one point, continuing the insane notion that the goal of the House should be to pass anything, despite what consequences it may bring. Later, Iowa Representative Steve King tweeted, somewhat ironically, about surfing the internet on his phone because he was bored listening to his colleague Shiela Jackson speak about the bill. Then, even more ironically, another representative’s comments calling him out for it were asked to be stricken from the record.
This used to be funny, but now it’s really just terrifying. We’re dealing with legislation that will completely change the face of the internet and free speech for years to come. Yet here we are, still at the mercy of underachieving Congressional know-nothings that have more in common with the slacker students sitting in the back of math class than elected representatives. The fact that some of the people charged with representing us must be dragged kicking and screaming out of their complacency on such matters is no longer endearing — it’s just pathetic and sad.
(click here to continue reading Dear Congress, It’s No Longer OK To Not Know How The Internet Works | Motherboard.)
I strongly support this initiative: I can think of no reason that metadata of photographs should be removed. I’ve discovered a few photos of mine, stolen by large corporations1 – if my EXIF information was still attached, the battle would be easier to conduct.
Photographers, film makers, videographers, illustrators, publishers, advertisers, designers, art directors, picture editors, librarians and curators all share the same problem: struggling to track rapidly expanding collections of digital media assets such as photos and video/film clips.
With that in mind we propose five guiding principles as our “Embedded Metadata Manifesto”: 1) Metadata is essential to describe, identify and track digital media and should be applied to all media items which are exchanged as files or by other means such as data streams. 2) Media file formats should provide the means to embed metadata in ways that can be read and handled by different software systems. 3) Metadata fields, their semantics (including labels on the user interface) and values, should not be changed across metadata formats. 4) Copyright management information metadata must never be removed from the files. 5) Other metadata should only be removed from files by agreement with their copyright holders. More details about these principles:
1: All people handling digital media need to recognise the crucial role of metadata for business. This involves more than just sticking labels on a media item. The knowledge which is required to describe the content comprehensively and concisely and the clear assertion of the intellectual ownership increase the value of the asset. Adding metadata to media items is an imperative for each and every professional workflow.
2: Exchanging media items is still done to a large extent by transmitting files containing the media content and in many cases this is the only (technical) way of communicating between the supplier and the consumer. To support the exchange of metadata with content it is a business requirement that file formats embed metadata within the digital file. Other methods like sidecar files are potentially exposed to metadata loss.
3: The type of content information carried in a metadata field, and the values assigned, should not depend on the technology used to embed metadata into a file. If multiple technologies are available for embedding the same field the software vendors must guarantee that the values are synchronized across the technologies without causing a loss of data or ambiguity.
4: Ownership metadata is the only way to save digital content from being considered orphaned work. Removal of such metadata impacts on the ability to assert ownership rights and is therefore forbidden by law in many countries.
5: Properly selected and applied metadata fields add value to media assets. For most collections of digital media content descriptive metadata is essential for retrieval and for understanding. Removing this valuable information devalues the asset.
(click here to continue reading Embedded Metadata Initative.)
For instance, here are a couple of screenshots of a photo’s EXIF information.
- a future blog post will explain, once my lawyer send the demand letter [↩]
The times they are a-changing…
Jimi Hendrix made an appearance at the Supreme Court on Wednesday in an argument over whether Congress acted constitutionally in 1994 by restoring copyright protection to foreign works that had once been in the public domain. The affected works included films by Alfred Hitchcock and Federico Fellini, books by C. S. Lewis and Virginia Woolf, symphonies by Prokofiev and Stravinsky and paintings by Picasso.
The suit challenging the law was brought by orchestra conductors, teachers and film archivists who say they had relied for years on the free availability of such works.
Chief Justice John G. Roberts Jr. posed the general question in the case this way: “One day I can perform Shostakovich. Congress does something. The next day I can’t. Doesn’t that present a serious First Amendment problem?”
Then the chief justice, a pioneer in the citation of popular music in legal discourse, asked the question slightly differently, invoking Hendrix, the great rock guitarist, to test the limits of the government’s position. “What about Jimi Hendrix, right? He has a distinctive rendition of the national anthem, and assuming the national anthem is suddenly entitled to copyright protection that it wasn’t before, he can’t do that, right?”
The solicitor general, Donald B. Verrilli Jr., making his debut in the post, said there were good reasons to allow Congress to restore copyright protection to works that had entered the public domain, even at some cost to free expression by performers and others. Responding to the chief justice’s hypothetical question, Mr. Verrilli said that “maybe Jimi Hendrix could claim fair use.”
(click here to continue reading Jimi Hendrix Is Cited During Supreme Court Arguments – NYTimes.com.)
Near the end of his argument in the case, Golan v. Holder, No. 10-545, Mr. Falzone returned to the chief justice’s reference to performers like Hendrix.
“There can’t be any doubt, as I think Chief Justice Roberts got at, that the performance has a huge amount of original expression bound up in it,” Mr. Falzone said. “It’s the reason it’s different to see King Lear at the Royal Shakespeare Company; it’s the reason it’s different when John Coltrane plays a jazz standard.”
Speaking of slimy music corporations, remember when this happened?
“As a sound recording.”
Margaret Cone read that innocuous-sounding legislative language and her heart skipped a beat. The time was last November, during the closing days of last year’s congressional session. Cone was a veteran Washington lobbyist.
She’d been tipped off that an amendment to a pending bill — quietly inserted without debate — would reclassify under the nation’s copyright laws all sound recordings, like cassettes and CDs, as “work made for hire.”
If true, that slight change would mean musicians would never again be able to own their recordings. Instead, record companies would become the sole legal owners of a record over its legally copyrightable life, currently 95 years.
Talking to a friend on the phone as she sifted through pending legislative bills, Cone recalls having “a sinking feeling that something wasn’t on the level.” She checked one bill that dealt with copyright; no mention of work for hire. She sifted through another, Title I of the Satellite Home Viewer Improvement Act, and found nothing.
Then, “on a fluke,” she went to the buried “definitions” section of that second bill and there she found this:
“(e) WORK MADE FOR HIRE-Section 101 of title 17, United State Code is amended in the definition relating to work for hire in paragraph (2) by inserting “as a sound recording.”
“My knees literally gave way,” says Cone, who often represents artists on Capitol Hill and instantly understood the ramifications of the proposed copyright change. “I told my friend on the phone, ‘I gotta go! I gotta go!'”
She dashed to the offices of the Courts and Intellectual Property Subcommittee to try to get some answers. “I wanted to find out how bad it was,” she recalls.
That was Nov 16. Two days later, despite Cone’s frantic back-room protests and pleas, the work-for-hire amendment, attached to a massive 1,740-page omnibus spending bill, passed the House and Senate. President Clinton signed it into law Nov. 29.
Early this August1, after months of public and often hostile debate, the record companies, lead by the Recording Industry Association of America, finally agreed to ask Congress to essentially repeal the work-for-hire amendment Cone discovered that day.
The battle represented a rare victory for musicians on both Capitol Hill and in the business arena.
(click here to continue reading Four little words – Eric Boehlert – Salon.com.)
- 2000 [↩]
I bet some record label execs are gnashing their teeth as these Termination Rights become more widely known…
Since their release in 1978, hit albums like Bruce Springsteen’s “Darkness on the Edge of Town,” Billy Joel’s “52nd Street,” the Doobie Brothers’ “Minute by Minute,” Kenny Rogers’s “Gambler” and Funkadelic’s “One Nation Under a Groove” have generated tens of millions of dollars for record companies. But thanks to a little-noted provision in United States copyright law, those artists — and thousands more — now have the right to reclaim ownership of their recordings, potentially leaving the labels out in the cold.
When copyright law was revised in the mid-1970s, musicians, like creators of other works of art, were granted “termination rights,” which allow them to regain control of their work after 35 years, so long as they apply at least two years in advance. Recordings from 1978 are the first to fall under the purview of the law, but in a matter of months, hits from 1979, like “The Long Run” by the Eagles and “Bad Girls” by Donna Summer, will be in the same situation — and then, as the calendar advances, every other master recording once it reaches the 35-year mark.
The provision also permits songwriters to reclaim ownership of qualifying songs. Bob Dylan has already filed to regain some of his compositions, as have other rock, pop and country performers like Tom Petty, Bryan Adams, Loretta Lynn, Kris Kristofferson, Tom Waits and Charlie Daniels, according to records on file at the United States Copyright Office.
“In terms of all those big acts you name, the recording industry has made a gazillion dollars on those masters, more than the artists have,” said Don Henley, a founder both of the Eagles and the Recording Artists Coalition, which seeks to protect performers’ legal rights. “So there’s an issue of parity here, of fairness. This is a bone of contention, and it’s going to get more contentious in the next couple of years.”
(click here to continue reading Springsteen and Others Soon Eligible to Recover Song Rights – NYTimes.com.)
Seriously, this will severely impact the bottom line of corporate behemoths, and they won’t walk away without a legal battle. They’ve already lost the PR battle, especially with comments like Steven Marks of the RIAA:
“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.
Right, because when consumers purchase 1978 albums like The Jam’s All Mod Cons; Bob Dylan’s Street Legal; Elvis Costello’s Armed Forces; The Clash’s Give ‘Em Enough Rope; Talking Heads More Songs About Building and Food; Tom Waits Blue Valentine; Willie Nelson’s Stardust; or even The Rolling Stones Some Girls: listeners are really concerned about paying salaries for corporate label morons like Steven Marks. The label is more important than the work of the artists in his view. Uh, huh. Could you tell me, without looking, what label each of these albums was released on? I’m a music nerd, and even I could only guess two of these correctly.
Also, the law has yet to be honed in court, there are several still unanswered questions about details:
The legislation, however, fails to address several important issues. Do record producers, session musicians and studio engineers also qualify as “authors” of a recording, entitled to a share of the rights after they revert? Can British groups like Led Zeppelin, the Rolling Stones, Pink Floyd, and Dire Straits exercise termination rights on their American recordings, even if their original contract was signed in Britain? These issues too are also an important part of the quiet, behind-the-scenes struggle that is now going on.
Given the potentially huge amounts of money at stake and the delicacy of the issues, both record companies, and recording artists and their managers have been reticent in talking about termination rights. The four major record companies either declined to discuss the issue or did not respond to requests for comment, referring the matter to the industry association.
But a recording industry executive involved in the issue, who spoke on condition of anonymity because he is not authorized to speak for the labels, said that significant differences of opinion exist not only between the majors and smaller independent companies, but also among the big four, which has prevented them from taking a unified position. Some of the major labels, he said, favor a court battle, no matter how long or costly it might be, while others worry that taking an unyielding position could backfire if the case is lost, since musicians and songwriters would be so deeply alienated that they would refuse to negotiate new deals and insist on total control of all their recordings.
Hard to be sympathetic to music label corporations – they’ve made many artists suffer through the years, and don’t have many friends in the industry. They used to have vertical integration all sewn up: if you were a touring musician, there was no way to survive without using the clout of a music label for distribution of your music. But that era is vanishing, and quickly.
Last year, global revenues from recorded music fell by 8.4%. A Universal Music Group insider recently told me that its owner, French media group Vivendi, has ordered the label to cut costs by $100m this year, meaning we’re likely to see more redundancies. No wonder the label is trying to downplay the implications of a recent US supreme court decision to turn down its appeal of a verdict stating that Eminem and the producers who helped him achieve success should get 50% of all revenue from iTunes downloads – around three times more than what the label has paid them so far.
The manager of FBT Productions, who first signed Eminem and continues to collect royalties on his music, told the New York Times that this means Universal owes the company $17-20m in back-payments. Considering that downloads of music Eminem (who was not party of the suit but stands to earn millions from it) keep selling, it could cost the label an extra $40-50m in the next five to 10 years. But it doesn’t look like Universal’s headache will end there. The estate of the late funkster Rick James has already filed a federal class action against the label, inviting other artists to join in, claiming that it should also have been paid 50% of all sales of digital downloads and ringtones.
At the centre of these lawsuits is the question of whether a download is a licence or a sale. A normal record deal today would usually give an artist 12-20% of revenue from sales depending on how successful they are at the point of signing (only the bigger artists get anything close to 20%). But if a song is licensed to be played in, say, a TV show or a film, they receive 50% of revenue. Buying a download on iTunes may make you feel like you own it, but the fact is that you’ve just bought the rights to play it. And so the court agreed with FBT that the Eminem downloads counted as licences.
Universal argues that it was simply the wording of Eminem’s specific contract that resulted in them losing the case, and it’s true that standard contracts have changed since the advent of iTunes and now clearly state that download sales count as sales. But thousands of artists signed their deals way before iTunes. If they did so before 1980, chances are they’re on a sales royalty rate that is lower than 10% – some artists from the 60s and 70s were on 4%, minus packaging deductions – which means they can up their digital royalty rate more than tenfold. It’s common that bigger artists, who are still signed to the same label, renegotiate their deals throughout their careers. Those artists will most likely have a clause about digital downloads in their contracts.
A series of successful claims could spell a much bigger problem for Universal than cutting $100m out of their budget: it could feasibly bankrupt every record label.
(click here to continue reading Behind the music: Why Eminem could spell major trouble for the major labels | Helienne Lindvall | Music | guardian.co.uk.)