(Re)capture This!

Attention 90s Musicians: Come get your stuff back!

I’m writing this so that my daughter in high school can understand it. Not that she’ll actually read it. It’s a subject that’s so big and so complex that I could literally write a book. Or someone could write a book, anyway.

I should also add the caveat that for some of you I’m offering a service. For perhaps 1% of people reading this, consider it a hard sell. My law firm provides a particular service that may prove extremely valuable to you.

“Recapture” is what we colloquially call the termination of copyright transfers under the United States Copyright Act of 1976, which became law in 1978. Have I lost you yet? Hang in there.

Under U.S. copyright law, any author who transfers ownership of a copyright is entitled to terminate their transfer after 35 years. They simply give notice within the appointed timeframe and receive a full reversion of the transferred copyright. It has been largely accepted that the reversion is for the United States only, though that is now in question (as I’ll address below).

Anyone who reads this Substack regularly knows I’m passionate about the rights of creative people. I’ve written several articles in a series called Don’t Bet Against Yourself that are about why and how creative artists should maintain ownership of their work. Taylor Swift has popularized the idea that artists should own their work. Believe me, my public stance on this issue predates Taylor’s fight for her masters. Full ownership has been the prize for artist advocates for decades.

The specific groups that needs to hear this message are recording artists who released albums—and songwriters who wrote songs—on labels in the 1990s and early 2000s. 35 years ago was 1991, the year of Nevermind, Loveless, Spiderland, Ten, Gish, The Low End Theory, and Rosy Jack World by Blake Babies. All of those are up for recapture this year.

For a few of those, those 35-year-old albums are as popular as ever, having won over Gen Z just as they’ll win over Gen Alpha and beyond. They’re culturally valuable, and they’re just plain valuable. Streaming, vinyl, broadcast radio, digital radio, public performance, maybe soon AI training…some of those records print money.

The catalogue business is far more popular than the front line/new release business. Remember the “long tail theory” from the early 2000s? We’re finally living that reality. When everyone has access to everything, anything from any time can become popular. And “popular” doesn’t have to mean that everyone’s heard it. A song with a legit 100,000,000 streams on Spotify is objectively popular. But I’ll bet there are 10,000 songs with 100,000,000 streams I’ve never heard.

I had a couple quick rounds with my chatbot about this question. It’s vague, but there are absolutely tens if not hundreds of thousands of tracks above 100M. That’s a HUGE volume of streaming, mostly on deep catalogue. If you were allowed to attend that party, why on earth would you pass the invitation to Warner, Sony, or Universal. Life changing money for you is for them a rounding error. Take your money.

All Over the World

Here’s the part where it would be easy to get lost in the weeds. If you prefer the weeds, I recommend this mind-bogglingly complex legal podcast on the Vetter v. Resnik case that gave me law school PTSD. Or better yet, read the published opinion! But here, I can make it very simple. I can do this.

The intellectual property at issue in Vetter is a banger of a one hit wonder from 1966 by the Swingin’ Medallions, a proto-frat-rock combo from coastal South Carolina. It’s a complex federal copyright case involving both copyright renewal under the 1909 Copyright Act and recapture under the 1976 Act. It’s a dizzyingly complex fact pattern, but the issue on appeal before the Fifth Circuit Court of Appeals was fairly simple: Is recapture limited to the United States, or does it extend to worldwide rights?

Fifth Circuit Court of Appeals affirmed the Plaintiff/Appellee Vetter’s argument that recapture isn’t limited to the United States; rather, it’s enforceable worldwide. For a slice of the American Pie that includes Louisiana, Mississippi and Texas, that’s the state of the law. The Defendant/Appellant Resnik Music Group can appeal to the Supreme Court, and I hope they do. Then it’s game time across the country.

To be clear, the source of major label power is their catalogue. Huge, diverse catalogues print money, and they don’t cost very much to maintain or market. When we send notice of termination for a title to a major label, they get out their checkbook. They pay an advance and up the royalty rate. They’ll give up some value to keep every title. But what if the maximum term was 35 years? Think of all the evergreen hits of the 60s, 70s, 80s, and now early 90s. Think of a world where all the artists from those eras owned their work all over the world.

It’s emotional for me, because I was an artist in another era, and I worked on records people still listen to. I don’t earn a dollar from any of those records, because all the stupid money the labels spent on expensive videos, radio payola, and flying their team to SXSW is still being recouped. That’s a huge proportion of the major label catalogue today—titles that stream pretty well but are officially unrecouped due to decisions the artist had nothing to do with.

My firm submitted an Amicus brief on behalf of an artist rights organization called Music Artists Coalition. We argued that worldwide recapture is appropriate to address a fundamental power imbalance that has always existed in our industry, and the changing incentives with the truly global scope of the modern industry. The primary author was Megan Wheeler, a young attorney in our firm. I love the following excerpt from her conclusion:

This case presents a choice between two visions of U.S. copyright law. One vision treats the termination right as meaningful protection for creators in the global marketplace where creators have the opportunity to recapture their works’ value. The other treats these rights as domestic-only consolation prizes that leave creators excluded from most of their works’ earning potential.

I believe the court chose the right vision. My friends who work at major labels might disagree. There’s a clear choice in the Artist Business.

I’ve realized a feature of being with a small law firm is that I can show my ideology to the world. At a major entertainment firm or a huge catalogue company, I’d have to bite my tongue since it’s against the interests of clients or colleagues. We’ll always stay on point so that we can do real artist advocacy on our terms.

We’re doing what we can to continue to pursue worldwide recapture in the courts. We can help in the meantime by helping artists and writers navigate recapture so that they’ll get the benefit if and when the time comes. Even if worldwide recapture doesn’t become the law across the country, it’s always worth it to file for recapture. Even if the worst case is the label advances money and gives you a better royalty.

I also note that copyright is an emotional topic for me because I’ve recently restored ownership all my Blake Babies songs I sold in the early 1990s. There’s an emotional side to this I can’t describe. It just feels good to own my work. I want that for you!

Let me know if my firm can help you, but PLEASE get your rights back. If you have a publishing deal with reversions, we can help with that as well. Ownership is emotionally satisfying, but it’s also powerful and potentially very valuable. It you don’t take that value, it will remain with Sony, Universal, or Warner. And I guarantee you they won’t notice if it’s there or if it’s gone. It’s nothing to them, but it just might be your retirement.