The Record
3:27 pm
Thu September 12, 2013

Taking Back 'Funkytown': Songwriters Prepare For A Custody Battle

Originally published on Thu September 12, 2013 3:48 pm

You might say Steven Greenberg is the mayor of Funkytown. Back in 1979, Greenberg was just another young musician and producer in Minneapolis. Then his group Lipps, Inc. recorded a song that would come to dominate the dance floors and airwaves in the summer of 1980, and for a long time afterward.

"It's been 33 years now since 'Funkytown' was released," Greenberg says. "I have two sons, and it's the daughter I never had."

Like a lot of recording artists, Greenberg only has joint custody of this offspring. The other parent is Universal Music Group, which owns the label that originally released "Funkytown." But Greenberg is trying to get full custody. So in early 2006, he and his lawyer Ken Abdo served early notice to Universal that they planned to reclaim sole ownership of his sound recordings, under a little-known provision of U.S. copyright law known as "termination rights." Abdo says the label seemed caught by surprise.

"The lawyer who I knew on the other side for the record company called me and said, 'What is this?' " Abdo says. "And I said, 'This is your worst nightmare.' "

When Congress revised U.S. copyright law in the 1970s, it granted "termination rights" to musicians and other creators, which allow them to regain control of their works after 35 years. (The law only applies to sound recordings released in 1978 or after.) Abdo says reclaiming ownership of "Funkytown" would allow his client to earn more in licensing fees and other revenues — exactly as Congress intended.

"If you have a big hit or several big hits, then all of a sudden the deal that you made early in your career doesn't seem quite fair because it was very lopsided," Abdo says. "It gives the author a chance to get a second bite at the apple."

Abdo's client isn't the only artist trying to get that bigger bite. Bob Dylan, Loretta Lynn, Kris Kristofferson and The Eagles have all filed notices with the U.S. copyright office to recover rights to their late-1970s recordings.

Universal declined interview requests for this story. The Recording Industry Association of America didn't want to talk about termination rights either. But the RIAA did send me to Barry Slotnick, a veteran copyright lawyer in New York. He does not expect the labels to just hand these rights over without a fight.

"It's not simply writing a letter and getting your rights back," Slotnick explains.

He says one big hurdle artists face is the question of whether a sound recording is a "work for hire." Since the 1970s, many labels have insisted on contract language that seems to define artists as employees of the label, Slotnick says.

"Virtually every record deal written since the law was changed provides that a recording artist is an 'employee for hire' under the copyright act," Slotnick says. "If it's there, record companies are gonna use it."

And that's a very big deal. Because if recording artists really are employees under copyright law, they would have no right to terminate their original deals. But just because a contract says artists are employees doesn't necessarily make it so, says Abdo.

"There is no way that a record company could identify an artist as an employee," Abdo says. "They're not on salary; there are no benefits; the artist is largely in control of the recording process."

A similar debate has already played out in court — and the artist won. Victor Willis, a former member of the Village People, recently won a much-publicized suit over the rights to some of the group's songs, including "YMCA." But that case was about songwriting, not the rights to the sound recording itself. That issue has yet to be tested in court.

"So everyone's in basically a game of chicken," says Casey Rae, the interim director of the Future of Music Coalition. "It's kind of like a holding pattern."

He says this game of chicken could still work out well for artists if it gets record labels to the bargaining table at a time when those labels have less power than they used to.

"Just the fact that termination exists," Rae says, "and the idea that recording artists would be eligible for this probably gives them some leverage to renegotiate their contracts anyway."

That might include Greenberg, the mayor of Funkytown. He doesn't seem bitter about having shared his baby with Universal for all these years.

"They've done a marvelous job licensing and marketing the song," Greenberg says. "But after 35 years, I think that it's fair that I could get my master recording back from Universal."

Sooner or later, some artist is likely to take a record label to court over termination rights. And the road to the courthouse could lead through Funkytown.

Copyright 2013 NPR. To see more, visit http://www.npr.org/.

Transcript

ROBERT SIEGEL, HOST:

From NPR News, this is ALL THINGS CONSIDERED. I'm Robert Siegel.

AUDIE CORNISH, HOST:

And I'm Audie Cornish. A law Congress passed almost 40 years ago is only now beginning to reverberate through the music industry. Starting this year, artists can file to reclaim ownership of their sound recordings under the Copyright Act of 1976. It's the latest blow for a record industry that's been rocked by the transition to digital music. But NPR's Joel Rose reports, the major labels are expected to fight hard to hold onto their most valuable recordings.

JOEL ROSE, BYLINE: You might say Steven Greenberg is the mayor of Funkytown.

(SOUNDBITE FROM SONG "FUNKYTOWN")

ROSE: Back in 1979, Greenberg was just another young musician and producer in Minneapolis. Then, his group Lipps, Inc. recorded a song that would come to dominate the dance floors and airwaves in the summer of 1980 and for a long time afterward.

(SOUNDBITE FROM SONG "FUNKYTOWN")

STEVEN GREENBERG: It's been 33 years now since "Funkytown" was released. I have two sons, and it's the daughter I never had.

ROSE: Like a lot of recording artists, Greenberg only has joint custody of this offspring. The other parent is Universal Music Group, which owns the label that originally released "Funkytown." But Greenberg is trying to get full custody. So, in early 2006, he and his lawyer Ken Abdo served early notice to Universal that they planned to reclaim sole ownership of his sound recordings, under a little-known provision of U.S. copyright law known as termination rights. Abdo says the label seemed caught by surprise.

KEN ABDO: The lawyer who I knew on the other side for the record company called me and said, what is this? And I said, this is your worst nightmare.

ROSE: When Congress revised U.S. copyright law in the 1970s, it granted termination rights to musicians and other creators, which allow them to regain control of their works after 35 years. The law only applies to sound recordings released in 1978 or after. Abdo says reclaiming ownership of "Funkytown" would allow his client to earn more in licensing fees and other revenues, exactly as Congress intended.

ABDO: If you have a big hit or several big hits, then all of a sudden the deal that you made when you were, you know, early in your career doesn't seem quite fair because it was very lopsided. And so it gives the author a chance to get a second bite at the apple.

ROSE: Abdo's client isn't the only artist who is trying to get that bigger bite. Bob Dylan, Loretta Lynn, Kris Kristofferson and The Eagles have all filed notices with the U.S. copyright office to recover rights to their late-1970s recordings.

(SOUNDBITE OF MUSIC)

ROSE: Universal declined interview requests for this story. The Recording Industry Association of America didn't want to talk about termination rights, either. But the RIAA did send me to Barry Slotnick, a veteran copyright lawyer in New York. He does not expect the labels to just hand these rights over without a fight.

BARRY SLOTNICK: It's not simply writing a letter and getting your rights back.

ROSE: Slotnick says one big hurdle artists face is the question of whether a sound recording is a work for hire. Since the 1970s, Slotnick says many labels have insisted on contract language that seems to define artists as employees of the label.

SLOTNICK: Virtually every record deal written since the law was changed provides that a recording artist is an employee for hire under the copyright act. If it's there, record companies are gonna use it.

ROSE: And that's a very big deal because if recording artists really are employees under copyright law, they would have no right to terminate their original deals. But just because a contract says artists are employees doesn't necessarily make it so, says lawyer Ken Abdo.

ABDO: There is no way that a record company could identify an artist as an employee. They're not on salary; there are no benefits; the artist is largely in control of the recording process.

ROSE: A similar debate has already played out in court and the artist won.

(SOUNDBITE FROM SONG "YMCA")

ROSE: Victor Willis, a former member of the Village People, won a much-publicized suit over the rights to some of the group's songs, including "YMCA." But that case was about songwriting, not the rights to the sound recording itself. That issue has yet to be tested in court.

CASEY RAE: So everyone's in basically a game of chicken. It's kind of like a holding pattern.

ROSE: Casey Rae is interim director of the Future of Music Coalition. He says this game of chicken could still work out well for artists if it gets record labels to the bargaining table at a time when those labels have less power than they used to.

RAE: Just the fact that termination exists and the idea that recording artists would be eligible for this probably gives them some leverage to renegotiate their contracts anyway.

ROSE: That might include Steven Greenberg, the mayor of Funkytown. He doesn't seem bitter about having shared his baby with Universal for all these years.

GREENBERG: They've done a marvelous job licensing and marketing the song. But after 35 years, I think that it's fair that I could get my master recording back from Universal.

ROSE: Sooner or later, some artist is likely to take a record label to court over termination rights. And the road to the courthouse could lead through Funkytown. Joel Rose, NPR News, New York. Transcript provided by NPR, Copyright NPR.