Artists Claim Progress With Hearing
"Work-For-Hire" Opponents Now Looking Toward Next Step In Battle
Author: Bill Holland
Publication: Billboard
Date: June 10, 2000
Abstract: Discussion of the "Work for Hire" battle, in which Henley gets in a bit of a heated exchange with subcommittee chairman Howard Coble.
WASHINGTON, D.C.-Artist advocates, who claim progress as a result of the May 25 House subcommittee hearing at which they aired complaints about a new law that makes sound recordings a new category of works made for hire, are now turning their attention to the next steps needed to persuade federal lawmakers to restore artists' rights to recover their recordings in the future.
Some veteran lobbyists, as well as participants, say that now that the House Subcommittee on Courts and Intellectual Property has held its hearing, action on the issue might come next from the Senate side. Insiders say the Senate Judiciary Committee could weigh in after studying testimony on the issue. There is hope among groups opposing the revised law that a back-to-zero or repeal amendment may be offered by that body later this session or in the new, post-election Congress.
Recording artist Sheryl Crow, co-founder with Don Henley of the Artists' Coalition, a burgeoning artist/manager ad-hoc body, has already met with members of the Senate committee and their staff during her Washington visit for the House hearing. Similarly, lobbyists from the Recording Industry Assn. of America (RIAA), which put forward the measure last year, have also had meetings with senators and staff, as well as lawmakers on the House side.
Following the House hearing, in reference to the House subcommittee staffer who inserted the provision and is now a lobbyist for the RIAA, Hilary Rosen, president/CEO of the RIAA, said to Billboard, "I'm glad the hearing proved Mitch Glazier's integrity and that Marybeth Peters [register of copyrights, who testified at the hearing] confirmed she was consulted and believes that sound recordings could be considered works for hire under existing law, and I'm glad artists had an opportunity to speak for themselves."
Senators and Judiciary Committee staff have been watching the developments on the House side since the provision was uncovered in January. While neither group has talked to the press about the issue, insiders say that many do not believe the new law has dealt a fair hand to artists and that they are greatly dissatisfied with the process by which the provision became law.
Some House-side lawmakers aren't pleased either, and there is a growing movement within the House subcommittee to restore the right. Rep. Rick Boucher, D-Va., told Billboard on May 31, "I am determined to take whatever steps are necessary to see the right restored."
Boucher, who cites the fact that "there was no bill, no hearings, and no discussion," says he was "not informed nor consulted about the provision. I was totally unaware of this. A staff member, perhaps inadvertently, inserted the provision without consultation of the members of the conference." He adds that "the staff member may not have known what he was doing, but he was wrong.
"I'm sympathetic to featured recording artists signing contracts with the work-for-hire language in them," Boucher continued. "They're at the mercy of the labels. But that [work made for hire] language [in contracts] alone does not mean they are if they do not fit in the pre-existing categories of commissioned works such as collective works."
Boucher added that in his view, "there is a very good chance of restoring the right through legislation or amendment. It was not proper to take it away, and make no mistake, I will make sure it is restored."
Boucher's new comments reflect the views of five other lawmakers on the subcommittee, including Mary Bono, R-Calif., who say they would consider introducing repeal legislation among their options to gain redress.
However, subcommittee chairman Howard Coble, R-N.C., and other lawmakers and Hill observers say there is not much chance of House passage of such legislation in the remaining months of this election-year session.
Nevertheless, artist-community representatives say they are pleased that the artists' side's testimony was so strong, considering the disparate constituencies among them and considering that in the weeks leading up to the hearing, there was serious talk of postponement to a later date to better coordinate opposition to the law.
Most cited the following reasons for feeling optimistic: First, in addition to the surprisingly sympathetic response of subcommittee members-which underscores the effective advance work done by artists' lobbyists, they say-the hearing was the first time that featured recording artists and their advocates have been able to organize themselves enough to present their views on Capitol Hill. This is a major achievement, they say, after decades when their views were often dismissed or ignored.
Second, artist involvement was a paramount concern, and that has also expanded. Crow and coalition co-founder Henley were successful in thus far formally recruiting 40 prominent recording artists and managers to sign on to their coalition (see sidebar).
Bluegrass legend Earl Scruggs, Deana Carter, Ronnie Spector, Angela Carter, and Bobby Parker were among the artists at the hearing.
No artists appeared at the hearing to testify in support of the RIAA's position.
"It's risky for artists and managers to lead this and stick their necks out," Henley told Billboard. "The intimidation factor, the fear of reprisals. So it's an important first step."
Third, the National Academy of Recording Arts and Sciences (NARAS) stepped into the debate in a major way. NARAS president/CEO Michael Greene came to Washington and met prior to the hearing with 14 lawmakers and their staffs before testifying on the May 25 panel in support of repealing the law.
"We at the academy have had many artists tell us that they feel particularly bruised by the passage of the new law," Greene said.
Greene said in testimony that "one artist who feared retribution by her label if she appeared here today told us in confidence that after toiling for a record company, delivering many albums under a largely onerous recording contract weighted heavily in the favor of the label, she felt there was some light at the end of the tunnel: She would be able to get her sound recordings back, because under the Copyright Act, they would revert to her in the future. "But those hopes have been dashed by this amendment that requires future works to remain the property of the record company in perpetuity," he said.
Greene later told Billboard in an interview that "the product of what happened Thursday [at the hearing] had everything to do with what happened Wednesday, which was actually sitting down with these congressmen and helping them really get a grasp on what the personal issues were."
Greene said that he believes the subcommittee "wants to do the right thing" but added, "A lot of where we were with the subcommittee before the hearing was because they'd been given a lot of bad information."
Greene has also reacted to the calls by individual artists and managers for a full-time group that would represent artists in Washington and did not deny reports that NARAS may decide to create a separate wing of that organization to serve-if needed-as a D.C. lobbying home base for featured artists and musicians.
All of the efforts are strong indications that the recording-artist community may soon have a seat at the table in D.C.; this comes at a time when digital-era copyright law changes, trade treaty provisions, and corporate entertainment integration efforts bring about changes that could affect artists' constitutional rights-and the financial legacies of their families and heirs.
Also, according to everyone in the artists' larger coalition, the extensive efforts of the American Federation of Television and Radio Artists (AFTRA), a group that represents some featured recording artists and that first found the provision and championed its repeal early on, were a major force in ensuring that members of Congress were fully apprised of the ramifications of the new law on artists' rights.
Meanwhile, artist and organizational opposition to the new law continues to grow. On the evening of the hearing, recording artist Joni Mitchell interrupted her set before 6,000 fans at an outdoor concert at the Merriweather Post Pavilion in nearby Columbia, Md., to state her opposition to the new law. She has since formally joined the Henley/Crow artist coalition. "Count me in," she told Billboard afterward.
ASCAP and BMI have also stepped into the fray on the side of the artists. Moreover, before the hearing, an opposition letter to the subcommittee from 20 of the most prominent copyright law professors in the country was submitted into the hearing's public record stating that sound recordings, before the new law, could not be considered works made for hire.
The list of organizations calling for complete repeal include the Artists' Coalition, which includes recording artist Crow; NARAS; AFTRA; the American Federation of Musicians; Amsong; the Washington Area Music Assn.; the Music Managers Forum; and the National Songwriters Assn.
Surprisingly, the well-known Barbour, Griffiths & Rogers lobbying firm, an outfit with close ties to the Republican majority, has been hired by a group representing a number of prominent artists' managers, and it likewise is pursuing a no-compromise solution. Says Greg Stevens of the Barbour firm, "Any discussion of compromise at this stage is code-speak for defeat and is not in the interest of artists."
What compromise language means, advocates of repeal fear, is that should the matter go to litigation, any ruling would lack the firm stamp of congressional approval and intent that sound recordings are definitely not works made for hire under the old law, thus robbing artists of their main legal point.
Artists' Coalition co-founder Henley says tactical compromise language was explored by a number of artist managers and lawyers, and he says he has been advised by lawmakers and lawyers that "unless we pursue this, the steeper the hill will be in the future to get something done."
However, Henley told Billboard May 31, "Neither Sheryl Crow nor I nor any member of the coalition wish to undermine the issue nor sell out. Our official position is what Sheryl Crow enunciated in her written testimony in Washington. And we will see where the process takes us."
The issue of sound recordings as works for hire involves the termination rights of tens of thousands of featured recording artists from the 1972-1999 era. The effort, say repeal advocates, would be worth it to ensure future generations of artists are protected.
For one thing, they say, complete repeal would give artists a leg up in courts in the future and would not take away the most persuasive argument of artists-that sound recordings had never been mentioned in the revised 1976 Copyright Act in the works made for hire section or the accompanying "congressional intent" language. Further, they say, given the recent groundswell of artist involvement, there is time to get it right, since the rights-reversion clauses of the Copyright Act don't officially kick in until 2013.
There is also an effort to tone down the emotional pitch of the debate. Short-tempered exchanges immediately after the hearing temporarily obscured its importance when reporters noticed that the last paragraph of Coble's written introductory statement-later discovered to have been written by a staffer-was directed at Henley. Although Coble did not utter the words, the statement concerned Henley's absence from the hearings and said, in part, that because Henley had been a "conspicuous critic of this subcommittee's work . . . I hope you get carpal tunnel syndrome from counting all the money you make, compliments of the Copyright Act and the Congress which wrote it."
Informed of the remarks on the phone May 25 by a correspondent from The Hollywood Reporter, an angry Henley, who said he hadn't been able to reschedule a live shooting in Austin, Texas, of a previously committed TV special, replied that Coble "has aided and abetted the film studios and the record companies in perpetuating the plantation mentality that has forever plagued our industry" and quoted political writer Robert Sherrill, saying the Capitol is a building "built for giants, inhabited by pygmies."
Henley now says he wants to end the war of words with Coble. He says he has never "publicly disparaged Coble or any member of his subcommittee nor taken him to task in any of my songs or anywhere else."
Henley says now it is clear that "third parties have thrown gasoline on the flames of this emotional issue in order to draw the congressman and me into a heated exchange," and he concludes, "I extend an olive branch as a citizen in the hope the chairman will respond as a statesman."
A still sensitive Coble says he too wants to calm the waters and joked, "I accept Mr. Henley's olive branch, as long as he doesn't shove it in my ear."
In a more serious vein, he says that the ramifications of the new law addressed by artists "were certainly below the radar for me until fairly recently-except for copyright lawyers and professors, perhaps."
Coble adds, "If I was incorrect [when] I said early on that some of the artists who were experiencing anxiety were overreacting . . . I'd be willing to eat crow and say, 'Listen, I was wrong, they weren't overreacting-let's go back to the drawing board and look at it again.'
"But I think they should understand why I was not unreasonable in suggesting that we were simply codifying and making official statutorily what has been going on for 28 years." But Coble adds pointedly that the defense that a sound recording is not a work made for hire merely because of registration custom "is not off the wall."
RIAA BOARD OF DIRECTORS
David Altschul, Warner Bros. Records Inc.
Michele Anthony, Sony Music Entertainment
Irving Azoff, Revolution
Val Azzoli, the Atlantic Group
David Berman, Buena Vista
Music Group
Ken Berry, EMI Recorded Music
Jay Boberg, MCA Records
Ray Cooper, Virgin Records America Inc.
Ronnie Dashev, Maverick Recording Co.
Clive Davis, Arista Records Inc.
Tracey Edmonds, YabYum Entertainment
David Glew, Epic Records Group
Dick Griffey, Solar Records/J.Hinesco
Zach Horowitz, Universal Music Group
Don Ienner, Columbia Records Group
Robert Jamieson, RCA Records Label U.S.
David Johnson, Warner Music Group
Lawrence Kenswil, Universal Music Group
Mel Lewinter, Universal Music Group
Roy Lott, EMI Recorded Music, North America
Sylvia Rhone, Elektra Entertainment Group
Guillermo Santiso, Fonovisa Inc.
Tom Silverman, Tommy Boy Music
Strauss Zelnick, BMG Entertainment
Hilary Rosen, Recording Industry Assn. of America president/CEO
