The Federal District Courts and the Supreme Court this past year have re-enforced the artists rights to own their work. In two different landmark cases they say that unless a writer has explicitly given the permission to the copyright holder to sell their work electronically, that the publisher does NOT own those rights. Why are we writing about this here? The answer is really quite simple. This has a major effect on almost every band and musical performer, particularly those who signed their contracts before the mid 1990's. Why the mid 1990's you ask? Once these lawsuits were filed, the publishers and record companies changed their contracts to include these rights. At the same time they were changing their contracts include electronic distribution, they were fighting the lawsuits with every weapon at their disposal. This raises the question, If they truly believed they owned the rights in the first place, why did they change their contracts to explicitly include these rights?. Both case show that the little guy can win against the media conglomerates.

As attorney Lawrence E Feldman points out in the audio clip, these rights can and probably should be negotiated separately. Photographers have done this for years. They "sell" or license the rights for a certain time frame, and individually. A cover shot for major magazine is different than poster rights for example or newspaper rights, or as a digital file on the internet.

These cases will, can and should have a major impact on musicians, who have been screwed over by unscrupulous record labels for years. If a label is licensing music from before the mid 90s (they are) and the right to distribute these electronic files is not explicitly spelled out in the contract, then they have no right to distribute them. The are just as guilty of copyright infringement. This would most likely be willful infringement since they in effect, admitted they didn't own the rights when they changed their contracts to include them in the mid 1990s. Willful infringement carries much harsher penalties than the "contributory infringement" that the RIAA keeps using when trying to sue people into submission, by filing brief after brief, making motion after motion, in an attempt to run up legal costs on the party they are attacking, thus depleting their operating funds.

If you are a musician whose rights have been trampled by the labels, or publishers, you should contact an attorney who understands the issues. This can be difficult as many of the entertainment attorneys also do work for the labels, and they have a vested interest in not upsetting the labels they deal with. An independent attorney who is familiar with copyright law and intellectual property is your best bet. To begin with make sure you are familiar with the terms in contracts and what they mean, so you can ask the right questions. Two of the best "plain English" contract critiques I have ever seen, come from two different places. One comes from The Future of Music Coalition and the other MUST READ is Moses Avalon's book "Confessions of a Record Producer".