How Charlie Daniels’ “Devil Went Down to GA” Was Copyright Law Lynchpin

EDITOR’S NOTE: This is a contribution from writer Brian Reisinger. He grew up on a farm in Sauk County, Wisconsin. He’s worked in journalism, public policy, and consulting, and writes about rural American culture, economics, history, politics, and the outdoors.

– – – – – – – – – –

Sometimes when the late Charlie Daniels spoke it was like hearing a shotgun go off in the woods. That voice, deep and searing, rounded by a lingering drawl—firing fast then settling over things, like buckshot scattering through the trees.

That’s how he sounded when I picked up the phone in Nashville in spring of 2010.

“Hello son, this is Charlie Daniels.”

The country and Southern rock icon was calling to talk about a copyright fight he was about to wage over “Devil Went Down to Georgia” and other hits from his heyday. It was a fight that would test the boundaries of U.S. Copyright law but go largely unsung, with a result that remained buried in a bureaucratic backwater—until now.

As all of country music commemorates Daniels this week at Volunteer Jam in Nashville (8-18), this is a story of not only his battle, but of the ways copyright issues affect everything. This fight snagged everyone from Daniels to the Pink Panther, and offers a case study in how even larger copyright clashes—each shaping the music industry in untold ways—can be won.

It’s fair to say that in 2010, the famous fiddler was worked up. At issue was what’s called “termination rights,” or when the copyright for a song or other written work returns to its author after selling it to a publisher. Under an old, pre-1978 law, writers often couldn’t get the rights to their work back until 56 years after their publishing deal. Under an update to U.S. Copyright law effective in 1978, writers could get the rights to their songs back within 35 years or so, depending upon the situation.

The problem for Daniels: He told me he wrote his famous song about Johnny battling the devil in 1979, in the middle of a recording session break, but it was part of a publishing deal inked pre-1978. That made “Devil Went Down to Georgia” arguably the most famous song caught in a “gap” that stood to affect countless songwriters from a key era of American music, as well as authors, screenwriters, and others. For songwriters, such rights are the bargaining chip when they start out with nothing then have a successful song—they can walk away with their rights after their first deal expires, or use them to secure a better deal for themselves. The gap left doubt about when, and whether, some of them had those rights.

At the time, Daniels was the only major artist speaking up about the issue, and his attorney—Casey Del Casino—was among the first to raise it with the U.S. Copyright Office, which regulates the industry when it comes to copyright law. It was uncharted territory for the music industry, with songwriters wanting the rights to their songs back sooner, and some publishing companies wanting to hold onto the rights—valuable parts of their catalogues—that they felt they’d fairly secured under longer, pre-1978 arrangements.

Daniels said he was willing to take legal action, and experts in Nashville and across the country predicted the issue might go all the way to the U.S. Supreme Court, or require an act by Congress to fix the law.

“It’s time for them to come back to me,” Daniels told me in 2010 for a story in the Nashville Business Journal on the upcoming fight. “It’s time for me to be able to do with those copyrights as I see fit.”

The U.S. Copyright Office issued a notice of inquiry shortly thereafter to collect public input, and the issue began to wind its way through the federal bureaucracy—then slipped from the headlines. Part of the reason was its niche quality. Copyrights in the music industry come in two major forms: one for the written song, and another for the recording. Daniels’ fight dealt only with the songwriting copyright, and a strange little section of it at that—how to treat songs you could argue belonged on both sides of the 1978 change in law.

There were also bigger, simpler fights fueling public debate then, and in the years to come. Folk icon Bob Dylan’s dispute with Sony, the various sagas involving pop star Taylor Swift, even a battle between Robin Thicke (son of the dad from “Growing Pains”) and the family of Motown/R&B legend Marvin Gaye. (As for myself, I moved on from the Nashville Business Journal, going first to Washington, D.C. and eventually back to my native Wisconsin, losing track of the issue along the way.)

But there was plenty happening beneath the surface. The Copyright Office’s request for input drew responses from songwriters’ lawyers, publishers, an attorney representing heirs of the dude who wrote the original “Pink Panther,” and esteemed law professors. Even well-known intellectual property attorney Jane Ginsburg of Columbia Law School submitted an argument, in favor of songwriters’ termination rights (Yes, that Ginsburg – the late Supreme Court Justice Ruth Bader Ginsburg was her mother). Another copyright expert, Daniel Gervais of Nashville’s Vanderbilt University, viewed the Charlie Daniels fight as the first real test of termination rights after the 1978 change in the law, and one of many legal battles that could burst forth as the Copyright office addressed—or failed to address—the problem.

It was a tough issue. Songwriters are often the working stiffs of the music industry, trying to get by on their craft or as session musicians. Publishers, meantime, include not only multi-national corporations, but also small independent operators—many of whom develop an emotional connection, as well as a business connection, to their catalogues.

“They have earned money, presumably they have been good and faithful in their obligations to the songwriters,” Michael Perlstein, a California attorney who often represents publishers, said. “They’ve done everything right for a very, very long time.”

Then, something unexpected happened: The federal bureaucracy dealt with the dispute. Legal records I reviewed this year—after talking with Daniels’ attorney Del Casino in the wake of Daniels’ death in July of 2020—confirm that the federal agency issued a clarification stating that songs created after 1978 should indeed go back to songwriters, and under the shorter 35-year time frame.

“That took guts and money and just kind of a belief in what we were doing,” Del Casino said, looking back on Daniels pushing the issue. “I can’t tell you what it meant to me, honestly.”

For Daniels, the change meant he could go back to the publisher that had been trying to claim longer ownership of his signature songs, and negotiate a better deal. But it also had a broader impact, largely unknown outside of legal circles. Songwriters whose songs could potentially fall into the gap—or otherwise be in doubt under that section of the law allowing for termination rights—now have a legal argument for getting their songs back, and sooner. It’s a lynchpin for future fights.

And yet the issue remains fraught—an area where battles still occur, and a reminder of even bigger copyright battles still raging.

In an interview, Ginsburg cautioned against calling the issue a “precedent”—it was a narrow clarification of the Copyright Office’s position, dealing specifically with works that fall into the gap, and still subject to court challenge. But she also said it made clear what should happen to reams of famous American music, including songs that were part of pre-1978 agreements but were written decades after the “Devil Went Down to Georgia” era.

Vanderbilt’s copyright professor Daniel Gervais, meanwhile, said Daniels offered a crucial test of termination rights, which attorneys for publishers had been working for decades to get around.

Still, a push-pull remains between songwriters and some publishers. Daniels was able to use the Copyright Office’s clarification to his benefit. But Michael Perlstein—the attorney who has represented music publishers—said until the issue is challenged in court or fixed by Congress, it remains subject to change. Plus, there are disputes over legal terminology regulators used. All this makes it an issue publishers can rightfully cite in holding onto songs they legally acquired, he said.

And termination rights to reclaim songs generally under the post-1978 section of law the Copyright Office bolstered—Section 203, to be precise—do remain in doubt in some cases. Enter Daniels’ fellow music superstar Dwight Yoakam. Yoakam’s previous label pulled from online streaming platforms his acclaimed debut album Guitars, Cadillacs, Etc., Etc. earlier this year, as Saving Country Music previously reported. The reason: Yoakam is suing to reclaim his copyrights under Section 203 of U.S. Copyright law, but publishers are disputing the validity of his termination rights.

More broadly, both Ginsburg and Gervais said the Daniels fight showcases where strengths and weaknesses in U.S. Copyright law lay for songwriters—termination rights and other protections are holding relatively strong despite ongoing battles, they argued. But in America writers are vulnerable to having their art termed a “work for hire” if they’re not careful, which can deprive them of protections.

And there’s no shortage of copyright fights, be it on those issues, other high-profile disputes between artists and executives, or devilish dilemmas of the digital age—even the baseline question of how money should be distributed when a song is streamed online remains in dispute.

In the end, maybe the biggest lesson of Daniels’ fight is on how war can be waged if a high-profile star picks up the mantle. Taylor Swift won a legal battle over recording copyrights of her early catalogue by re-recording it so that she owned a new set of “masters” instead of the set executives were holding onto.

Stars simply have the profile and money to take risks, and fuel long-running court battles or legislative efforts—or regulatory pushes like Daniels did. Suffice to say, there is no shortage of legal battles that people in all corners of the music industry would love to have a Charlie Daniels-like champion take up.

And it helps if that champion has a loud, clear voice—like that Charlie Daniels vocal shotgun, still echoing to this day as fans around the world remember him.

– – – – – – – – – – –

The Charlie Daniels Volunteer Jam is being held on Wednesday, August 18th at the Bridgestone Arena in Nashville. Tennessee Governor Bill Lee has officially declared Wednesday “Charlie Daniels Day.”

© 2022 Saving Country Music
4+