Moses Avalon is one of the nation’s leading music-business consultants and artists’-rights advocates and is the author of a top-selling music business reference, Confessions of a Record Producer. More of his articles can be found at www.mosesavalon.com.
Many artists claim that, given the opportunity, they would take back their recordings from their money-grubbing labels. Well, hundreds of acts will get that chance soon. Recently, the subject of “reversion of masters” surfaced in the New York Times. But when push comes to shove, many artists might opt to keep their hit recordings right where they are.
This excerpt is based on a chapter from the latest book by industry expert Moses Avalon, 100 Answers to 50 Questions on the Music Business.
While many in the music space have known about the coming copyright Armageddon (known as “reversion” / “termination of master rights”) for several years, most artists still have no idea exactly what it means for them and what they can do about it. Though the idea of artists taking back their classic recordings might seem great, given that many feel mistreated by their labels, my bet is that the “devil you know is better than the devil you don’t” philosophy will prevail when the time comes. Here’s why, and a brief guide to help with this decision.
First, what is reversion?
The Copyright Act states that after 35 years, the license or transfer of a work to a publisher (or label) can “terminate” and revert back to the original author. Under that law, artists who recorded material after January 1, 1978 are eligible to reclaim their masters in the year 2013. If the copyrights were created/transferred in 1979, then they are eligible for reversion in 2014; if created in 1980, they are eligible in 2015; etc.
Sounds simple, but for those that recorded/released prior to 1978, things get a bit more complicated. Copyright law has changed several times from 1972 to the present, resulting in several important exceptions to the “termination of masters” provision. For example, because of the change in law that occurred in 1978, artists whose recordings were registered between 1972 and 1978 will need to wait 56 years before they can reclaim their masters; and artists whose masters were recorded before 1972 can never reclaim their masters, because — believe it or not — no sound-recording copyright existed before 1972.
To make matters even more confusing, the window to submit a “termination of master” claim varies in length for each of the zones listed above. Ugh!
With so many variances in the law, we really need a computer to keep track of what masters will become available (isn’t there an app for that?) — especially when one considers that the albums immediately affected are some of pop music’s most successful recordings.
Great. Now, how do I get my record back?
Though reversion may sound like the ultimate victory for the artist, keep in mind that without the threat of label litigation, bootleggers will be free to copy any CD like a two-track master and then commercially release the classic recording without significant fear of punishment. If the last 10 years have taught the music business anything regarding copyright infringement, it’s that it’s one thing to prove it and quite another to get the money.
Can you imagine several different labels each selling different releases of Pink Floyd’s The Wall? (It terminates in 2013.) Each would sound virtually identical to the original, because each would be a re-recording of the same original CD. (Ever bought a bad bootleg by accident, and upon listening to it realized that this was just an illegal recording of the recording? No? Right…me neither.)
Artists have to ask themselves this important question before attempting to pry loose the meal tickets of their labels: what would various releases from legitimate sources (iTunes, Amazon.com) as well as nefarious virus-ridden ones do to consumer confidence when considering a purchase? Imagine the brand starting to deteriorate because of confusion or fear.
And it gets worse: because bootleggers have no direct contact with the artist, no royalties from sales would be paid, and it is doubtful they would opt to pay the mechanical either.
And it gets even worse: unless the copyright administrator (which would be the artist by default when the master reverts) sues each and every bootlegger (very expensive), the sound-recording copyright could be voided and end up prematurely in the public domain.
So ironically, reversion — the artist’s right to control their work — could end up causing the deregulating of their copyright and the complete loss of the artist’s control.
Bottom line: before you get too excited about taking back those masters, you need to determine if you have the legal infrastructure and resources to defend the copyright as effectively as the label over the past 35 years.
So what should an artist do?
In lieu of actual reversion, there are a number of strategies that the artist can employ to turn the situation to their advantage. In my view, a clever artist would see this as an opportunity to renegotiate with the label, rather than an outright divorce. In my consulting practice, that’s the strategy I’ve been recommending.
Ask the label, “What value are you going to bring to the recordings from this point forward?” With Internet tools so cheaply available, it is clear that you no longer need a label to distribute your music, but you might need a partner to exploit it in new and creative ways. Ask the label for a marketing plan. Or do a P&D deal and flip the percentages; you get 85 percent and they get 15 percent.
Remember, unless you have the resources to market, promote, and, most importantly, protect your copyrights, you should try to see reversion as an opportunity for negotiating a new deal with your label to bring new life to your hit record.
Spite makes for bad business decisions.
A word of warning: reversion is a tricky business not to be undertaken without a qualified attorney. So don’t try this at home, kids. If you need an attorney, the Moses Avalon Company will get you one of the best. Click here to email me for more information on this.