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Thursday, 31 March 2016

Ray Charles' Foundation Sues His Own Children In Copyright Fight

The Ray Charles Foundation is now suing seven of his children for $3.5 million -- basically asking for their inheritance back -- after the children sought to terminate the copyrights on his songs and regain control over them. There's a bit of a backstory here. Apparently, before he died, Charles gathered a bunch of his children, and told them that he was leaving each of them $500,000 (and enough to cover the taxes on the money) if they signed agreements stating that was all they would get, and that they would not seek to get anything else from his estate. However, recently a bunch of the children have begun the process of terminating the copyright assignments over Charles' songs, and the Foundation is arguing this is a breach of that agreement.

Now, my first thought upon reading the CNN article above is that this doesn't make much sense. We've been discussing copyright termination rights for a while, and one clear aspect of them is that you cannot contractually give up your termination rights. I would think that a contract that provided something that you lose if you exercise your termination rights would not be enforceable for that reason. If you haven't been following the details of the termination rights issue, under the 1976 copyright act, original creators can "terminate" the assignment of their copyright and basically reclaim it from whoever has it at the 35 year mark. Thus, musicians who signed record deals in 1978 (when the Act first came into effect) can start reclaiming their rights next year.

However, the details found in the actual lawsuit (pdf and embedded below) are a bit more complicated. First of all, as we've discussed at length, if the artist is considered to have done work under a "work for hire" agreement (and the terms of what counts for work for hire are very specific and go way beyond just saying it's work for hire), then termination rights do not apply. In this case, the Ray Charles Foundation is actually arguing that Ray Charles' agreement with Atlantic Records was a "work for hire" situation. This is a little strange. Normally, we see the record labels arguing that it was work for hire, but the artist or their heirs arguing it was not. In this case, however, since the Foundation is completely cut off from the heirs, it seems to be arguing in favor or a work for hire arrangement. Also, the reason why the 1976 Act's termination rights apply to works from before 1978 is a bit complicated, but it has to do with a new agreement that Charles made concerning his works in 1980.

If you find this all a bit confusing, you're not the only one. The Foundation notes that Charles' children aren't even sure which works can be terminated, and because of multiple copyright registration dates, they've been filing for termination on the same work multiple times:
The situation of the Ray Charles song "Mary Ann," is illustrative: Defendants have served a purported termination for a supposed January 23, 1955, transfer (supposedly to take effect on April 1, 2012), another purported termination for a supposed May 2, 1963, transfer (supposedly to take effect on May 3, 2019), and, because "Mary Ann" is an Assigned Composition under the 1980 Agreement, a third termination for a supposed transfer contained in this September 23, 1980, agreement (supposedly to take effect on November 15, 2015). Even if some of the terminations were deemed valid, it is still extremely difficult, if not impossible to determine when the copyright of the Assigned Compositions will change hands.
Of course, I'm not so sure that's a reasonable excuse for ignoring termination rights altogether. Just because the labels and Charles may have had piss poor record keeping, people should just throw their hands up in the air and ignore termination rights?

Reading through this lawsuit really highlights just what a complete and total mess copyright law is, and how it's such a complicated mess due to the way it's been adjusted and changed over the years, that the system is really quite hopelessly broken. A situation like the one described above with multiple termination notices on the same song is just illustrative of the problem. Furthermore, while I'm not a fan of the concept of termination rights in general, this case could get interesting for being one (of many) testing challenges over whether or not artist agreements from decades ago were really "work for hire" situations -- and this is a case where the label isn't actually involved (right now). That makes it one worth watching.

Of course, there is a separate issue that hasn't been brought up yet, but I wonder if it will make an appearance at some point. In his book The Public Domain, James Boyle tracks down the true history of Ray Charles' classic song "I Got a Woman". What he discovers is that, contrary to what has been said before, the song was actually a copy of a song by the Bailey Gospel Singers called "I've Got a Savior" (whereas the common wisdom is that Charles was actually copying a public domain song "Jesus Is All The World To Me"). As Boyle discovered, "I've Got a Savior" is much much closer to "I Got a Woman". And that's at least somewhat problematic, since "I Got a Woman" came out just three or four years after "I've Got a Savior" (which itself borrowed heavily from other works). So, once could make an argument that "I Got a Woman" (which is one of the songs being disputed here) may have some fairly shallow copyrights on just the changes from that other song.

Of course, perhaps the larger point in all of this is that almost all of the songs being fought over should be going into the public domain about now. "I Got A Woman", for example, received its copyright on December 20th, 1954 -- at which point it would have been given a 28 year grant, renewable for another 28 years. As such it should have gone into the public domain in 2010. There are a bunch of other songs on the list that received their original copyright in 1955 and 1956 -- all of which should be going into the public domain right now, but are not. Perhaps that's the real issue that we should be focusing on: how the public has been completely robbed of these works, violating the promise made to the public in exchange for granting Charles and Atlantic Records that original copyright.

POINT OF VIEW: Waving to Ray Charles: Missing the Meaning of Disabilities

Academic journal article Phi Delta Kappan

POINT OF VIEW: Waving to Ray Charles: Missing the Meaning of Disabilities

Article excerpt

Current calls to close the achievement gap between students with disabilities and those without not only ignore reality but, argues Mr. Kauffman, also pose a real threat to special education students and their teachers.

YOU MAY forgive yourself if you chuckled silently as you read the title of this article. The idea that someone would have tried to wave to Ray Charles during his lifetime is funny simply because everyone knew that he couldn't see anyone waving to him. Indeed, waving to any blind person is humorous, but it is par-ticularly funny to think of someone waving to a blind person who is known throughout the world to be blind. Perhaps the humor resides in our seeing the naivete of a child in the social unawareness of an adult. However, anyone who waves to a blind person demonstrates a misunderstanding of facts.

Laughing at something funny might be an appropriate initial response. But some funny events are also dangerous, and besides laughing we need to respond seriously to the danger. Unfortunately, too often we neither laugh at the funny-but-dangerous nor take appropriate corrective action. We then fail in two ways: first by not laughing at funny things and second by not trying to stop something dangerous. Our failures then demonstrate our willingness to ignore reality.

Among the laughable but dangerous assumptions of many who should know better is that there need be no gap between the achievement of students with disabilities and the achievement of those who do not have disabilities. This assumption may be implicit in policy or even explicit in policy documents. Either way, it shows that someone has apparently missed the meaning of "disability." In education, students with disabilities are those who score low on tests because of their disability. Trying to close this gap is like waving to Ray Charles. But educators are led in this misunderstanding of facts by the United States Department of Education.

President Bush appointed the President's Commission on Excellence in Special Education (PCESE) in October 2001. In July 2002, the commission filed its report, A New Era: Revitalizing Special Education for Children and their Families.1 Among the bizarre statements included is this one: "The ultimate test of the value of special education is that, once identified, children close the achievement gap with their peers" (p. 4). Of course, the gap to which the PCESE refers is not closable, for reasons obvious to anyone with an understanding of statistics and disability. Moreover, the federal rules that pertain to scores from alternative assessments under the No Child Left Behind (NCLB) Act ignore the fact that far more than 1% of schoolchildren have disabilities that depress their test scores.

We would all like to see higher achievement for students with and without disabilities. Nevertheless, students with disabilities, as a group, score lower on tests than do students without disabilities. That is, their average will always be lower, even though some individuals with disabilities will score at or above the average for the general population. However, the PCESE did not define the achievement gap as the difference between what students with disabilities could achieve and what they do achieve -- a gap we could and should close. Nor did the PCESE refer to the difference between what students with disabilities achieve with, versus without, special education. That is another closable gap that we should address. But the gap between the average achievement for students in special education and the average achievement for students in general education cannot be closed without eliminating the top achievers in general education or the lowest achievers in special education -- or both.

Students in general education are the wrong comparison group for assessing the effectiveness of special education. The appropriate comparison would be between students with disabilities who receive special education and students with disabilities who do not, given that students in the two groups are similar in other ways. …
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