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Ray Charles Foundation changes position on status of soul star’s songs

By | Published on Wednesday 17 October 2012

Ray Charles

The Ray Charles Foundation has changed its position regarding songs written by the late soul star currently owned by Warner/Chappell, from which it receives royalties in accordance with the late musician’s will. As previously reported, the Foundation sued Charles’s children in March after they tried to reclaim ownership of the songs from which the charity earns a royalty.

Under American copyright law, songwriters can reclaim ownership of copyrights they previously assigned to a music publisher 35 years after their original deal. That rule was passed in the late 1970s, and the 35 year term only applied to deals done after the new law was enacted (for existing copyrights the term was longer), so is only now really coming into effect. The Charles family, like a number of veteran songwriters, are now trying to exercise that right to reclaim control of their father’s works.

But the Foundation doesn’t want that to happen, because it would deprive it of the royalties it receives from the Warner publishing company. In trying to block the family’s termination notice (which tells the publisher the family wants their father’s copyrights back), the charity presented various arguments, including a deal between Charles and his children when he was alive regards their inheritance which, the Foundation says, stops the descendants from making new claims over their father’s estate now, and a claim that a 1980 renegotiation of Charles’s deal with Warner voided the termination right under US copyright law.

The Foundation also threw in the argument that some of Charles’s songs were written on a ‘work for hire’ basis while he was signed to Warner/Chappell, which would mean the copyrights in those songs would automatically belong to the publisher, rather than the publisher getting the rights via a pre-existing ‘assignment’ agreement with the musician. It’s an important distinction, because if works are created by an individual on a ‘work for hire’ basis, the employer is technically the creator, meaning the songwriter loses the right to reclaim their works after 35 years (because they were never their works to reclaim).

US copyright law is a bit vague as to what constitutes ‘work for hire’ in this context, and that question is likely to become a very big deal in the next few years, as more veteran artists exercise their 35 year opt-out right. Some publishers will likely claim (indeed a few already have) that some termination notices submitted by songwriters are not valid because works were created on a ‘work for hire’ basis.

Though, actually, this debate will be more significant in the record industry, because the record labels are convinced the 35 year opt-out provision has no relevance to them, because all sound recordings created under a traditional record contract are done so on a ‘work for hire’ basis, meaning recording artists have no claim under this bit of American copyright law. Some recording artists and their lawyers beg to differ though, and the whole “how do you define work for hire” debate could end up in court.

But back to the Charles case. While the Charles family will dispute any claims their father’s work was created on a work for hire basis, they also hit back at the Foundation’s lawsuit by saying, if the songs in question were indeed made work for hire, meaning Warner/Chappell was the creator, then only the publisher could try to block the family’s termination notice, because the charity wouldn’t have any official status to pursue such a claim, as a mere beneficiary of work created by the Warner entity.

It’s another area where American copyright law is ambiguous, though the judge hearing the case last month basically agreed with the Charles family’s viewpoint on that issue. Which means, according to Billboard, the Foundation has changed its mind, and is now saying the disputed songs were not made on a ‘work for hire’ basis, but were created by Charles and the copyrights assigned to the publisher. Whether such a fundamental change of position will damage the Foundation’s wider claim remains to be seen, the Charles family seem to hope so.

It also remains to be seen where this dispute goes next. Some had expected the case to provide some interesting insight on the ‘work for hire’ issue, which could have ramifications for other publishers and especially labels trying to block 35 year termination notices. Though if both sides in this lawsuit now agree the Charles songs were not created as a work for hire, it may have less relevance on that wider issue moving forward.