The NYTimes carried a number of pieces recently about surging interest in terminations of transfers of copyright interests, as the window of opportunity for terminations of rights executed just after the current Copyright Act took effect, in 1978, opens. A lot of popular music released in the late 1970s is still commercially valuable today (who knew?) , and songwriters and recording artists responsible for it now want it back.
“A Village Person Tests the Copyright Law”
“Record Industry Braces for Artists’ Battles Over Song Rights”
“Don Henley Urges Artists to Know Their Rights”
Some of the writing in these and related stories doesn’t draw a clear distinction between songwriters reclaiming their copyright interests in composition copyrights, and performers and other artists reclaiming interests in original sound recordings. Transfers of interests in both things may be terminated, according to the statutory scheme, but they are separate and distinct, and reclaiming those interests leads to an interesting set of new problems.
For example, a recording artist may successfully terminate the transfer of copyright in an original sound recording, i.e., a master recording. But recovering the copyright doesn’t necessarily mean recovering the master recording itself. Post-termination, the artist may own the intellectual property rights to the song, but a record label or someone else may still have legal possession — personal or tangible property rights — of the recording.
The situation reminds me (and may remind other copyright lawyers) of the epilogue to Community for Creative Non-Violence v. Reid, 490 U.S. 730 (1989), the Supreme Court opinion that is invoked to guide answering the question: was the person creating the work an independent contractor or an employee? Reid and CCNV later settled that case on terms that gave Reid, the sculptor, the copyright to the “Third World America” sculpture for purposes of making three-dimensional reproductions; the parties were co-owners for purposes of two-dimensional reproductions. But CCNV retained possession of the sculpture, and CCNV refused to give Reid access to it so that he could make a mold. (CCNV insisted that Reid could exercise his rights only if Reid re-sculpted the work.) The parties went back to court.  The judge fashioned a remedy that he analogized to “an implied easement of necessity,” requiring CCNV to make the original available to Reid for the purpose of allowing Reid (or his agent) to make a mold. The short opinion is available on Westlaw, at 1991 WL 370138 (D.D.C. 1991).
In the contemporary music scene, there are intimations of a global settlement of termination claims. Presumably one of the chits in the labels’ hands is physical possession of the masters themselves. A lot of artists from the 1970s don’t want to go back into the studio to re-record those songs, or can’t. But the CCNV v. Reid remedy, an “implied easement of necessity,” is the sort of thing that is unlikely to apply broadly, among other reasons because the difficulty of re-producing the original recordings will vary from artist to artist. In other words, recording artists who recover rights in masters are likely to get access to those masters via some kind of settlement, or on an (expensive) one-case-at-a-time basis, or, if the equities of Reid are not present, not at all.