Bessent: A messy game of musical profits

There's a war brewing in the record business. Not a shooting war like the East Coast-West Coast rapper madness of years past. And not a revolution like the rise of digital downloads that laid waste to record stores and left record companies scrambling. But it's a war that could alter the balance of power between artists and their labels. The prize is "termination rights."

When U.S. copyright law was revised in 1976, it gave recording artists and songwriters the right to regain legal control of their work after 35 years.

Under the law, songs recorded after Jan. 1, 1978, and previously owned by labels soon may not be anymore. Artists now hold an ace from the deck -- a deck that used to be stacked in favor of the labels that signed talented unknowns with stars in their eyes to multi-record deals that ensured the labels controlled the product.

When a performer made it big, it was a pretty good arrangement. The artist got famous and maybe rich. The label, which gambled on lots of artists, including many who didn't make it, recouped those losses at the expense of the ones who did. Nothing wrong with a return on investment. That's capitalism. But 35 years is long enough.

So termination rights are a big deal, especially for artists who sold some songs but never hit the big time. The 1976 changes in the law leveled the playing field, and singers and songwriters are moving now to assert their claims.

Copyright protection is supposed to provide incentives for creators by protecting their opportunity to profit from their work. If there's money to be made on songs 35 years after they were recorded, artists should be the ones cashing in. And if a label isn't doing anything with old songs, all the more reason for the artist to reclaim ownership. The labels don't much like any of that, and can be expected to resist. That means litigation is in the offing.

Congress should head off some of it by clarifying ambiguities in the statute, such as who should be considered the author of a work and entitled to ownership. Right now everybody who had anything to do with a master recording can claim rights.

The American Federation of Television and Recording Artists says the feature artist is the author. But what about backup singers? Or producers? Or musicians? Congress should sort that out so the courts won't have to do it case by case.

Another bone of contention is whether sound recordings are "works for hire" created by singers and musicians who are essentially employees of record labels. If so, then the label is the owner. Motion pictures, for instance, are considered works for hire. So is a contribution to a collective work, such as an article written by a reporter on salary for a newspaper. But Congress left sound recordings off that list.

That changed for a short time in 1999 when language defining sound recordings as works for hire was surreptitiously slipped into an unrelated bill by a congressional aide who reportedly went on to become a recording industry lobbyist.

A year later, recording artists led by Sheryl Crow and Don Henley persuaded Congress to deep-six that work-for-hire amendment. But some in the industry insist the language of the original law encompasses sound recordings.

Congress should make it clear: Sound recordings are not works for hire. The intent of the 1976 law was to give record labels 35 years to make money on a song and then return control to the artist.

The record business isn't what it used to be. It's been rocked by digital downloads and is losing money to Internet theft. But singers and songwriters should still be entitled to own their art.

Alvin Bessent is a member of the Newsday editorial board.