I heard a wonderful interview on the drive home today. Tom Power of CBC was interviewing the legendary George Clinton. For those of you unfamiliar (which I hope isn’t many), George Clinton is the brilliant mind behind Parliament (go listen to Give Up the Funk), Funkadelic (go listen to Maggot Brain), and of course, Parliament-Funkadelic. His musical catalogue encompasses 30+ albums spanning over half a century. He is the foremost forefather of funk.
Much of the interview revolved around Clinton’s ongoing battle to retain the rights to his music. He, like many in the music industry, fell victim to the cunning and powerful record labels and their ability to exploit the complicated copyright laws that govern musical works. Speaking of the American copyright regime, a lawyer for the nonprofit Public Knowledge noted how “the system is designed to favor the better informed, more lawyered party…which is almost always the label.”
In 2001, a federal judge in Florida ruled that Bridgeport Music Inc. owned ALL of Clinton’s works produced between 1976-83. This included the right to publish and distribute (and royalties). In 2005, a federal judge in California granted Clinton possession of four master recordings, but stopped short of the copyrights. These suits persisted, largely unsuccessful. To this day, the rights to the majority of Clinton’s works remain in the hands of others. Tired but unrelenting, Clinton “just wants [his] stuff back”…
Intrigued and excited to make the connection between this musical legend and a current course at law school, I got home and started poking around… which led me to this fabulous article, which describes (and displays) Clinton’s newfound love of art – specifically, painting. He notes how many of his paintings are testaments to his ongoing fight to reclaim the rights to his music. “When an old song’s ownership is returned…he plays it while he paints.” I found it almost poetic how the battle over one work has produced another. How a perceived “copywrong” inspired further creations, birthing new copyrights. A sort of copyright-ception.
Anyways, I thought this was a fun way to conceptualize copyright in the wild, and – as noted a few lectures ago – observe the nexus between contract and copyright (read your contracts!). This discussion also begs the question, does our copyright regime do enough to protect the rights of less sophisticated creators?
Consider that the motivation behind Clinton’s continuous copyright crusade is to secure his legacy for his family. Section 14 of the Canadian Copyright Act provides for a reversion of rights assigned 25 years after the death of the author (to protect an author’s kin from any improvident bargains made by the author); HOWEVER, this only applies if the author is the first owner, and authors who produce works in the course of employment (such as if they are paid to do so by a record label…) are NOT the first owner of the works produced.
In the American context, a somewhat similar regime exists for “termination” of a copyright. As noted by Gardner: “If a work is made for hire, it’s the employer who is considered the statutory author. The subject has been a hot one in the music world, where some artists are attempting to terminate copyright grants. But if the musician has agreed to produce music as a work-made-for-hire, they aren’t really the “author” as far as the law is concerned and don’t enjoy termination rights.” Should they?
Communications Law
I don’t know a lot about the music industry, but I was wondering why a musician would be considered an “employee” rather than an “independent contractor” when producing music for the record company?
Good point! Perhaps “employee” was the wrong word. Creating “on behalf of another”, or as Gardner puts it, “made for hire” is likely a more apt description of what transpires in the music industry (as I would presume most musicians to be considered contractors). Under the Canadian regime, would Clinton then be protected by section 14?
The sad thing about the advice “read your contracts!” is that there are infinitely more musicians than record labels prepared to sign them—and the labels know this. Often, these contracts, which is how it goes in many different disciplines, are “take it or leave it,” and people need to eat and pay their rent… What seems like a problem-solving lump sum at the time is a bad deal in the long run.
In an ideal world, maybe we would have a copyright regime that automatically grants first ownership to the artist regardless of any other contractual or employment relationship. This could be a rule which is impossible to contract out of. Or, if it can be modified, maybe any clause to the contrary could be viewed with the same scrutiny as a restrictive covenant in an employment contract. For example, in KRG Insurance Brokers (Western) Inc v Shafron (2009 SCC) , the court held that in employment contracts, “a restrictive covenant is prima facie unenforceable unless it is shown to be reasonable… The onus is on the party seeking to enforce the restrictive covenant to show the reasonableness of its terms.” Why not subject a clause that grants ownership to anyone other than the artist to the same scrutiny? Is it reasonable that George Clinton has no control over his music in any jurisdiction for the rest of his life?
Employment contracts and record deals work differently. However, the court in Shafron did acknowledge that types of contracts are historically plagued by uneven bargaining power and can never be truly entered into freely. Because of this, courts should not take these agreements at face value. In the absence of an entirely new copyright regime, maybe at least a court could expand this skeptical approach to any contractual term that gives the stronger party a monopoly on the weaker party’s labour, even after their working relationship has ended.