“Standin’ on the highway with my coffee cup
A-wonderin’ who was gonna pick me up
I had my hopes up high, I never thought that I
Would ever wonder why I ever said good-by
I had my hopes up high” I Had My Hopes Up High music and lyrics by Joe Ely
The path of a professional musician is rocky and strewn with obstacles. Many struggle to find an audience, to earn a living, to be picked up by a major record label. But even for those who make it, the road is still precarious. One reason is in the devils bargain they had to make to get their first recording contract.
The term “quid pro quo” had gone viral until a real virus took hold of our collective attention. But “quid pro quo” applies to more than just phone calls between heads of state. For most emerging singer/songwriters, the quid pro quo for getting a record deal was this: the record company demanded that the artist assign her copyrights to the label. And that demand came in the form of an offer the artists couldn’t refuse–either assign the copyrights or no deal–a classic case of one party to a deal holding all the cards and having all the leverage.
Congress, back in the day when bipartisanship and legislative compromise weren’t dirty words, recognized the artists’s dilemma and provided a fix. The fix is by no means quick. But is is real and potentially lucrative–the 1976 revision of the Copyright Act, Congress included a “termination right” so that artists like Joe Ely pictured above, Bruce Springsteen, Tom Petty, and others who had signed-away their copyrights at the start of their recording careers can take back their rights, lock, stock and barrel, after 35 years.
But, as Ringo sang, “it don’t come easy.” Artists must follow strict procedures about the timing and content of their termination notices. And as might be expected, the record companies, having given an artist a “big advance,” (like The Boss gets at the end of Rosalita), aren’t exactly keen to see the valuable copyrights revert to an artist whose career the company launched and helped sustain for decades. And so, some of the current corporate copyright holders have vowed not to give up without a fight and have refused to honor termination requests from Joe Ely and many others.
Mr. Ely, however, along with English musician John Waite, “won’t back down,” as Tom Petty sang. They are lead plaintiffs in a class action lawsuit against UMG, a major music corporation. In the lawsuit, Ely and Waite argue that UMG has not good reason or legal basis for rejecting their termination notices.
UMG, for its part, argues that the musicians never had a termination right because their original recording contracts included language that called the musician’s songs “works for hire.” So technically, UMG argues, artists like Mr. Ely never owned the copyrights in the songs they wrote and recorded while under contract to the recording companies. They further argue that the musicians should have sued over the “work for hire” issue decades ago, within three years of signing their contracts, so that the statute of limitations applies and bars their current claims.
Earlier this week, a federal judge rejected UMG’s theory, writing that denying the artists’ their termination right based on things they did or didn’t do over thirty years ago “at a time during which the artist and recording company may still have disparate levels of bargaining power — would thwart Congress’s intent and eviscerate the right itself.”
So the case continues on to a trial to determine whether Ely and the rest properly exercised their right of termination and can regain control of their copyrights.
The case is: Waite et al. v. UMG Recordings Inc. et al., case number 1:19-cv-01091, in the U.S. District Court for the Southern District of New York.
One of Joe Ely’s Texas Troubadour compatriots, Robert Earl Keen, sings “The Road Goes On Forever and The Party Never Ends.” This case will determine whether a record company’s party–it’s hold on copyrights it insisted on owning decades ago when it had superior bargaining power, will go on forever, or at least until the copyright expires many years in the future. The recent ruling shooting down UMG’s first line of defense leaves Mr. Ely and the other Plaintiffs with “their hopes up high.”
Quote of the day: “What have you done to me? Can’t you remove the spell you have cast over me?” Johannes Brahms