BROOKE GLADSTONE:

Artists like the Doobie Brothers, Bruce Springsteen, Billy Joel, The Rolling Stones, Willie Nelson, The Village People, you know, musicians of a certain age, are counting the minutes to January 2013.

In 1976, Congress revised copyright law inserting a provision that allows musicians and songwriters to regain control of work initially registered with the Copyright Office after January 1^st, 1978.

The only catch? The artists had to wait 35 years. Now the rights to the hits and flops of 1978 are poised to revert to the artists. For them it will mean a windfall and, not  surprisingly, says Duke University Law Professor James Boyle, the major record labels are girding for war.

James, welcome back to the show.

JAMES BOYLE:

It's great to be here.

BROOKE GLADSTONE:

So is the law really clear on this matter?

JAMES BOYLE:

The law is not clear. This is something the copyright lawyers just love to argue about. It has a Talmudic complexity. But basically  the situation is this: the was changed so that if you assigned your copyright to someone – a publisher, a film studio, a record company – after 35 years you could get it back.

Hopefully, at that point you could unspool the deal that you made in your youthful enthusiasm and perhaps reap the benefits of whatever success your works had achieved in the meantime.

BROOKE GLADSTONE:

You could get it back.

JAMES BOYLE:

You could get it back.

BROOKE GLADSTONE:

That reminds me of a song of 1978.

[PEACHES & HERB SINGING REUNITED]

[LAUGHS]

JAMES BOYLE:

With all the great songs from 1978, surely we could have done better than Peaches & Herb.

[BROOKE LAUGHING]

But the law doesn't apply to so-called “works for hire.” So if Microsoft hires a programmer to improve Microsoft Word’s help features, nobody thinks that he gets to be the copyrighted owner of Microsoft Word;  Microsoft will own the copyright, not him.

And so, the record companies would like to say that the people who make albums, whether it's Don Henley and The Eagles or whether it's the B-52s or Blondie or The Police, all people who had great songs from 1978, that  those people are just workers for hire. They were assigned by the record studios to create the music that they made.

BROOKE GLADSTONE:

I hate to say it, but that reminds me of another song.

[YOU BELONG TO ME]

JAMES BOYLE:

Now, if that were true [BROOKE LAUGHING]

then the record companies are correct. Their rights don’t get terminated. They keep the copyrights over these sound recordings.

But here's the first lovely irony of this tale. As you may know, recording contracts are vicious, nasty things that resemble feudal  indenture. They basically make the artists bear all of the costs of the recording, everything from the sound recording cost to the costs of hiring session musicians, to the - the promotion, the payola, the shipping; all of these things come out of the artist’s share of royalties.

And the artist will never managed to recoup their original advance, until they paid off this whole cost. Does that sound to you like an employee, a worker for hire? No, it doesn't.

So the wonderful thing here is that the recording companies are actually in a terrible rhetorical position because of the very overreaching contracts [BROOKE LAUGHS]

that they have imposed on their own artists. It’s just a delicious irony.

BROOKE GLADSTONE:

Do you want to pick a song to suggest that?

JAMES BOYLE:

I think the position of the record companies comes from one of my favorite songs of 1978.

[I WANT TO SEDATED]

BROOKE GLADSTONE:

So you’re not terribly sympathetic to the major labels’ arguments, but since they're not making much cash on new songs, they’re  increasingly relying on cash from the old ones. They’re really gonna miss it.

[SONG UP AND UNDER]

JAMES BOYLE:

First of all, it's fair to say that there are arguments on the other side.   The danger in this whole change, in this whole legal debate, and the danger that the record companies have actually focused on is what if this produces a fragmentation of rights, what if there are copyright claims, not just from the rock musicians, but from the backup singers, from the recording engineer, the sound engineer? All of these people have played a role in the creation of the record. Could they all claim copyrights in it?  At that point, in order to get permission to play the music, would you have to strike a deal independently with 10 or 12 people? That's called a rates thicket, and it's something that lawyers try to avoid.

I think, frankly, that prospect is overblown.  I don't think the courts would do that. I think they’d draw a line under the artist and probably say that the backup singers don’t get a share of the copyright. But it's one that the record companies have been stressing in saying the copyright should stay safe, and they should stay with us.

BROOKE GLADSTONE:

Major labels have always made the argument that a few big releases pay for all the modestly selling experiments they might do. It’s essentially the same argument made by  pharmaceutical companies. You know, you put in a lot of R&D, but maybe only one drug is a big hit.

Do you see any validity to that argument? If you deprive Sony of the profits from Kenny Rogers, will we see fewer sleeper bands that could one day be great?

JAMES BOYLE:

It’s a weak argument because they knew fine well, ever since the passage of the 1976 Copyright Act, that there was at least a great risk that these recordings would go back to the artists. That meant that they should have been pricing in those risks into the contracts they do, just as when you’re, you know, buying Greek bonds, you’re – you’re pricing in the risk of default.

Secondly, of all the times to say that we need these huge windfalls on the established hits of the late seventies in order to fund our future music pipeline, I think this is one of the worst, because it was true back in ‘78 that you really needed access to recording studios, to the airwaves, to a promotional network. You had to have distribution chains in order to get your music out there. And so, the recording companies could legitimately say, without us this music just won’t make it to the consumer.

That's a much harder argument to make now. And, in fact, some recent empirical studies have shown that despite file-sharing, despite all of the travails that the music industry is going through, there's a striking number of new artists who are being picked as the most creative in their fields by Pitchfork and other reviewing sites; it doesn't seem like the pipeline of new and creative musicians is slowing down, even though the record companies are claiming that their losses are at an all-time high.

BROOKE GLADSTONE:

So could you sum up this situation then with a song?

JAMES BOYLE:

From the point of view of the record companies, I think that the ultimate answer is that, in the words of Gloria Gaynor, they will survive.

[I WILL SURVIVE]

BROOKE GLADSTONE:

James, thanks so much.

JAMES BOYLE:

Thank you very much.

BROOKE GLADSTONE:

James Boyle is a professor of law at Duke University.