tag:blogger.com,1999:blog-5574479.post8106835848789018698..comments2024-03-29T11:10:02.290+00:00Comments on The IPKat: Are performers a special case?Verónica Rodríguez Arguijohttp://www.blogger.com/profile/05763207846940036921noreply@blogger.comBlogger9125tag:blogger.com,1999:blog-5574479.post-57216905095012100782009-01-12T18:22:00.000+00:002009-01-12T18:22:00.000+00:00Perhaps I missing the issue, but why doesn't the p...Perhaps I missing the issue, but why doesn't the problem outlined by Professor Harcourt beg for a solution in contract law rather than copyright?such sweet thunderhttps://www.blogger.com/profile/07068360083745606892noreply@blogger.comtag:blogger.com,1999:blog-5574479.post-77136053111173250452009-01-11T13:18:00.000+00:002009-01-11T13:18:00.000+00:00Dear WilliamWhen you say "I still fail to see how ...Dear William<BR/><BR/>When you say "I still fail to see how recording artists getting taken advantage of by record labels means that the public must in turn get taken advantage of by both groups" I have to say that I do agree with you. I was just making a specific comment to the 'morality' issue raised in Amanda's article. I am personally somewhat neutral in the 'extending the term' debate and still need to be convinced of the rationale behind the term extension for sound recordings. If the argument is one of inequality with original works (in particular music and literary copyrights) then this needs to debated in the context of a possible reduction in the latter. I thought Andrew Gowers' response to Andy Burnham's annoucement made for an interesting (and amusing) read here. I also wonder quite why the recorded music industry has expended so much effort in this area - I firmly believe they have bigger fish to fry. <BR/><BR/>Best wishes, BenAnonymousnoreply@blogger.comtag:blogger.com,1999:blog-5574479.post-86680811056201149552009-01-09T00:58:00.000+00:002009-01-09T00:58:00.000+00:00No: IP law should not be used to address any perce...No: IP law should not be used to address any perceived non-IP issues i.e. making good “unequal” contracts between performers and recording studios is not the function of IP law.Anonymousnoreply@blogger.comtag:blogger.com,1999:blog-5574479.post-24185832872843328392009-01-05T09:02:00.000+00:002009-01-05T09:02:00.000+00:00None of this addresses the overriding economic fac...None of this addresses the overriding economic factor - namely that the only records likely to still be selling well enough fifty years after recording are those which would have made a fortune upon their release (disregarding the exceptionally rare examples of records which did not sell well on release but then are suddenly made famous in their original recorded version decades later).<BR/><BR/>Hence, we are not assuring a living income for poor artists - we are throwing them a couple of pence, and lining the pockets of the already rich.Anonymousnoreply@blogger.comtag:blogger.com,1999:blog-5574479.post-70453679489357304582009-01-05T09:01:00.000+00:002009-01-05T09:01:00.000+00:00I agree with William Patry that the inequities of ...I agree with William Patry that the inequities of recording contracts are a separate issue from the issues of extension of term for (1) sound recording copyright and (2) performers' rights.<BR/><BR/>So far as extension of term is concerned, I agree with Amanda Harcourt that the arguments in favour of an extension for performers' rights are different to those in favour of an extension for sound recording copyright. This point is addressed in the latest (4th) edition of my book on Performers' Rights at para 1.119.Anonymousnoreply@blogger.comtag:blogger.com,1999:blog-5574479.post-12096616260945928582008-12-24T21:14:00.000+00:002008-12-24T21:14:00.000+00:00Ben, I still fail to see how recording artists get...Ben, I still fail to see how recording artists getting taken advantage of by record labels means that the public must in turn get taken advantage of by both groups. <BR/><BR/>The fact that recording artists get the short end of the economic stick in their dealings with the labels has been known since the first recording contracts. Where have Mr. Burnham and his predecessors been? Why did their professed keen sense of morality and fairness toward recording artists not manifest itself it until now, many, many decades after the injustice was patently apparent?<BR/><BR/>I would love to know the reaction of the labels and Mr. Burnham to a proposal that 100% of the proceeds from term extension go to recording artists and that prospectively they receive a mandatory minimum payment enabling them to receive a living wage,an alleged concern of his. I fear that as in past legislative proposals, from the Statute of Anne on, creators have been put forth as the beard for the commercial business who stand to actually benefit. As with the Statute of Anne, if the term extension is approved, the politicians will have their photo ops and the warm support of celebrities, but when the lights are out and the time for payment to recordings artists comes, there will little if any payments made to those who were supposed to benefit. By then Mr. Burnham will have moved to help the next worthy group and the public will get stuck with the cheque. Where's the morality in that?William Patryhttps://www.blogger.com/profile/12987498082479617363noreply@blogger.comtag:blogger.com,1999:blog-5574479.post-75301766854423215142008-12-24T12:49:00.000+00:002008-12-24T12:49:00.000+00:00Amanda makes an interesting point - and touches on...Amanda makes an interesting point - and touches on record company contracts with performers. For those who haven't read one of the 'standard' form contracts for the exclusive services of recording artists which the major labels provide, they are most interesting documents. Theese contracts have also been repeatedly challenged in the courts and in some instances voided by the courts in England and Wales for being in unreasonable restraint of trade, or having been entered into with an inequality of bargaining power. <BR/><BR/>One of the best known cases which examined these contracts was George Michael's 1994 action against his label, Sony. Michael pointed out that unlike buying a house with a mortgage, when Michael was advanced monies to record his albums, even when he had 'repaid' the advance through recoupment by the label from his royalties, he still didn't own the copyright- this was owned for the term of copyright by the label - even though he had paid for it. Now, to be fair, once recouped Michael would receive pipeline royalties but Michael went further and pointed out that the use of contractually binding 'royalty reducers' by labels dramatically reduced his royalties. For example Michael suffered a 25% reduction on his royalty rate for CDs (which of course in the 90s was the dominant media for sale of music). Other typical royalty reducers in label contracts include automatic breakage deductions of say 10% of the artists royalty (carried over from the days of vinyl and before where discs did shatter), A 35% for 'packaging' which extends to downloads (!), a 50% reducer for mail order sales (errrm that would be Amazon then) and another 50% royakty reducer for TV advertised albums. These, when applied cumulatively and with other reducers such as free goods allowances and accounting resrves can quickly reduce an artist royalty of what they thought was a 'reasonable' sum of say £1 each CD or album download sold to say something more like 10p. Until recently it has been the courts who have been the only effective break on these practices which many do feel are at best immoral. Artists are now better organised and trade associations like the Music Managers Forum in the UK and the Recording Artists Coalition in the US are fighting back. But it is STILL an upheal struggle and many artists are tied by contracts which they feel are at best unfavourable. It is interesting that in the fight to extend the term of sound recordings from the current 50 years the labels have used both featured abd now backing artists to support their cause. It may well be that on closer examination it is only the artists who do have the moral high ground as Amanda suggests. <BR/><BR/>See Panayioyou v Sony Music Entertainment (UK) Ltd (1994) E.M.L.R. 229 and see Zang Tumb Tumb Records v Johnson (1993) E.M.L.R. 61Anonymousnoreply@blogger.comtag:blogger.com,1999:blog-5574479.post-25564105083700367552008-12-24T12:45:00.000+00:002008-12-24T12:45:00.000+00:00A recorded musical performance is a tangible creat...A recorded musical performance is a tangible creative work that exists independently of the musical composition that was the subject of the performance.<BR/><BR/>Take Bob Dylan's original studio recording of "Like a Rolling Stone". That is a work whose "value" will endure indefinitely, independently of the song itself. Why should its performers be treated any differently from the author of a book or a painting for copyright purposes? Why should the same logic not apply to any musical sound recording, regardless of its "value"? If a musical sound recording is of no value, it can't cost anything to record a new, equally good version rather than pay for a copy of the original.<BR/><BR/>A typical music consumer buys recordings, not sheet music, in the way that a book reader buys books.Anonymousnoreply@blogger.comtag:blogger.com,1999:blog-5574479.post-45034613512178221272008-12-23T21:28:00.000+00:002008-12-23T21:28:00.000+00:00Professor Harcourt advances the very argument thos...Professor Harcourt advances the very argument those from Lord Macaulay to Gowers have effectively and repeatedly refuted; that there is some moral obligation on the public to pay and pay and pay until every last remote heir of a copyright owner has died. <BR/><BR/>She has only one twist: the record labels are admittedly immoral but the songwriters occupy the moral high ground. That's like saying I invested all my money with Bernie Madoff, so please public bail me out because he stole from me. Its even worse than that though, since performers know record labels are very unlikely to give them anything back.<BR/><BR/>In 1841 Macaulay advanced the only rationale ground for term extension: will it lead to more copyrighted works. No one can claim the current proposals will, and certainly can't if granted retroactively. Morality is the last refuge for those who have not a single substantive argument.William Patryhttps://www.blogger.com/profile/12987498082479617363noreply@blogger.com