Don Henley Urges Artists to Know Their Rights

By LARRY ROHTER       08/16/11
Lucas Jackson/Reuters

The drummer, singer and songwriter Don Henley is a founder of the Eagles, one of the most popular of American rock bands from the 1970s onward, and the Recording Artists Coalition, which seeks to protect the rights of musicians and songwriters. Other members of the coalition, which in 2009 became part of the National Academy of Recording Arts and Sciences, have included Bruce Springsteen, Madonna, Billy Joel, Elton John, R.E.M., Dave Matthews, Eric Clapton, Sting, Joni Mitchell, Bonnie Raitt and No Doubt. Last month Mr. Henley spoke with Larry Rohter about changes in copyright law that allow artists to reclaim ownership of recordings issued after Jan. 1, 1978, from the record labels that originally released them by invoking their “termination rights.” Here are excerpts from that conversation:

Q.

What was your objective in getting into this battle over termination rights?

A.

My primary concern is that artists know about this and understand what it means for them. If they don’t, it’s a glaring failure on the part of their managers and attorneys. I hesitate to make recommendations, because it’s a personal decision between them and their managers and labels. But they should at least know they can do this if they want.

Q.

You and Sheryl Crow went to Washington back in 1999 and 2000 and persuaded Congress to undo language classifying sound recordings as “works for hire,” which had just been inserted stealthily into another, unrelated bill. Back then, were you already looking ahead to today, when artists would have the right to reclaim ownership of their recordings, at the expense of record labels?

A.

The termination issue was certainly part of it. We were concerned with a lot of issues in recording contracts that we considered to be unfair, and this was one of the most glaring. We knew that 2013 was going to be a deadline, and that recordings from 1978 would be the first battle. But let’s go back and talk about the history of work for hire for a minute. “Work for hire” was never intended to apply to sound recordings. That came about because of movies and books. Sound recordings somehow got added to the list, then taken off again.

Q.

Now that they have these rights, what should musicians and songwriters do?

A.

Artists getting their masters back is a personal issue. I don’t want to presume to speak for others, but I know that I want mine back. If any artist wants to get his masters, he should be able to do that. But I don’t know if the labels are interested in going down that road. I know there’s been some talk of an industrywide global settlement. We’re certainly willing to listen, but I don’t know of any going on at this moment. It’s still an artist-to-label matter at this point.

Of course, artists being the bullheaded lot they are, many maybe wouldn’t want to join in that settlement, and then what have you got? It seems to me a majority, a great majority, would have to buy into this in order for it to work. Anything that involves artists is a herding cats situation. That’s one of reasons, frankly, that artists have been so mistreated and abused over so many decades in the recording industry — because they are not organized.

Q.

Why do you think the labels haven’t actively pursued a broad settlement through the Recording Industry Association of America? Is it because they think their argument, that recording artists are in essence label employees rather than independent contractors, can prevail in court?

A.

I don’t want to put words into their mouths, but there are probably mixed feelings in the industry about how to deal with this. There is a faction at the RIAA that does not want to see the artists get their masters back, period. But I sense they are not a monolith.

Q.

What is your own position on this issue? What do you intend to do yourself?

A.

In terms of me and my colleagues in the Eagles, the point is that we think it’s wise to go ahead and invoke the right of termination before the deadlines.

Q.

Why?

A.

I look at my masters as something I created. The work for hire clause attempts to state that the record labels are the creators of these works, which is absurd. The artists create these works and they should own them. It’s as simple as that. I want to be able to pass them on to my kids. It’s part of their legacy, or should be.

Q.

“Hotel California” was released in 1976, before the revision of copyright law went into effect. But “The Long Run,” which has sold seven million copies, will be up for termination in a few months. Are you saying that’s what you’re going to do, revoke the grant of rights you made back in the 1970s?

A.

I don’t really want to announce that to you. I really don’t want to go there. It wouldn’t be proper to tell you before we tell the label.

Q.

One of the arguments the RIAA is using against termination rights is that they would create chaos “because rights for most recordings would be divided among various band members, producers and others who contributed to the recording, and it might require years of litigation to sort out who has what rights.” What’s your reaction to that line of reasoning?

A.

That’s a lovely dance step. But you can’t contort your way through the back door, which is basically what they are trying to do. As far as “chaos theory” is concerned, that is merely conjecture. I would still want my stuff back, and if the producer wants the right of termination, or the percussionist, let me deal with that. Let me worry about that. Better the chaos on the artists’ side than the side of the labels, which are in chaos already.

Q.

What do you mean by that?

A.

Record labels, especially these days, are very tenuous organizations that could be sold or go bankrupt. And then it would be 1,000 times harder for an artist to get his master recordings back. That is something else that needs to be factored into this.

Q.

Well, what about the producers and session men you just mentioned? Should they also be considered as “authors” of a recording for purposes of the copyright law?

A.

(Pause) I don’t think they should. There is an agreement with a producer.

Q.

The only significant court case so far involves Bob Marley’s heirs trying to reclaim ownership of his first five albums from Universal. In that case, Universal has prevailed, at least in the initial ruling. Any comment on that?

A.

That’s unfortunate. But that decision will be tested many times, and hopefully overturned. That falls under a different set of rules, because the law changed in 1978.

Q.

But if that position were to be upheld in a higher court, what would artists be able to do about it?

A.

One option is to go in the studio and re-record the songs and make new masters. If you completely re-record the songs, my understanding is that the label doesn’t own those masters any more, you do, that they don’t have anything to say about it if you record songs again from the ground up and everything is new. But that depends on the state of the artist’s career, on marketing and demographics. We’ve considered doing that, but never gotten around to it, and I don’t know if we ever will.

Q.

And if there is a court ruling in favor of artists, as most legal experts expect, what would be the impact on the record labels?

A.

I don’t know. The recording industry is already in trouble and this probably wouldn’t help it any. If the recording industry had been more fair, historically speaking, to both artists and consumers, it might be looked upon a little more kindly. But the labels are sleeping in a bed of their own making.

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