Meeting Topic: Termination Rights: How Artists May be Able to Undo Old Deals and Reclaim Copyrights
Speaker Name: Michael Matesky II, Associate, Christensen, O'Connor, Johnson, Kindness
Meeting Location: Opus 4 Studios, Bothell, WA
The PNW Section's first November meeting was on copyright law as pertains to sound recordings, specifically termination rights, a part of U.S. copyright law which can allow artists to reclaim rights previously assigned 35 years ago. However, as law often goes, it may not be completely clear or simple. The speaker was Michael Matesky II, an attorney with the Seattle law firm of Christensen, O'Connor, Johnson, Kindness. The meeting was held at Dr. Michael Matesky's Opus 4 Studios in Bothell, WA.
Mike began by playing excerpts of Ray Charles and The Village People, noting that both songs were now under ownership dispute. He then reviewed copyright basics and rights conveyed.
Musical pieces have two copyrights, the composition and the recording. A copyright exists when fixed in a tangible medium, and the ownership vests in the "author," except for joint works and works made for hire. This is perhaps the big gotcha for reclaiming a copyright - an author can't do it if it was a work for hire, which is frequently a matter of dispute and often a legal gray area.
With works for hire, the creator could be an employee, creating a work as part of their employment, or an independent contractor, whose work is commissioned for one of 9 very specific categories and has a written work for hire agreement. Those 9 categories do not specifically include sound recordings, but the U.S. Congress says this does not necessarily mean sound recordings can't be a work for hire.
The nine work for hire categories are:
1-a contribution to a collective work
2-part of a motionpicture or other AV work
4-a supplementary work
6-an instructional text
8-answer material for a test
Thus, to reclaim a copyright under termination rights, it can't be a work for hire, and it could be major work and legal wrangling to prove so. The starting date is for works created since Jan 1, 1978. There's 5 year window after 35 years, with 2-10 years advance notice given to the current copyright holder.
After a break, some doorprizes (AES Convention swag) were given courtesy of Dr. Matesky/Opus 4 Studios:
-AEA mints: Jayney Wallick, Scott Mehrens
-Latchlake car USB powerplug: Gary Louie
-Sanken ballcap: Dave Tosti-Lane
-Earplugs: Gary Koh
-iHip tote bag: Paul Colvin
Resuming after the break, Mike cited many examples of case law regarding whether sound recordings be works for hire, questions on how sound-only recordings may not be protectable as one of the 9 categories of works for hire, and other cases of termination rights.
He finished with things to consider in future contracts, whether commissioning or working.