Musician to Napster judge: Let my music go

Byrd's failure to earn artist's royalties stems in part from his inability to find a copy of his contract. "I've looked everywhere," he says. "One of the only things that I am sure of in this case is that it's nowhere to be found."

Sony also couldn't unearth Byrd's contract in time for this story, but if it was like others from that era, suggests one entertainment lawyer, Byrd may not be owed as much as he thinks, if he's owed anything at all. Contracts from the decade of free love made it particularly difficult for artists to make money, says Walter McDonough, a lawyer who works with the Future of Music Coalition.

"For a lot of people who recorded in the '60s, the royalty rates were a lot lower," he says. "A lot of the contracts paid royalties that are two-thirds of what they are now."

Specifically, after production, marketing and touring are paid for, today's contracts pay out about 15 percent of record sales; artists get about $2 for every $14 or $15 CD that's sold. Contracts from the 1960s era typically paid about 6 or 7 percent, or $.50, for records that cost about $7 at the time. And it's not even clear that Byrd's albums ever recouped their initial production cost, which, according to Byrd, was about $45,000.

Byrd says that "The United States of America," his first album, largely flopped on release. But the album was re-released on compact disc in the 1980s and is still available. In a 1999 letter to Sony, Byrd noted that, in light of the re-release, it "certainly has royalty payments due."

"The American Metaphysical Circus" has been more successful, says Byrd, although he doesn't consider it his best work; he's actually a bit embarrassed about the album's odd, trippy feel. But there appears to have been enough of an interest to keep the album on record-store shelves. "I went to a record bin a while ago, and 17 years after it was recorded, there it was," Byrd says. "I asked a clerk and he said it was still in the catalog."

Byrd believes that the album wouldn't still be available if it weren't selling. So even if only a few thousand albums or tapes or CDs are sold each year, Byrd figures he's owed several thousand dollars. His experience with other albums confirms his sense that there is money due. In 1978 he produced an album for Ry Cooder called "Jazz." "That cost $75,000 to make and it took about two years to pay off the debt," he says. "Then I started getting royalties."

It's not as if Sony has no idea who Byrd is, either. Five years ago Sony's publishing wing called to ask Byrd for his signature because the British band Portishead wanted to cover one of his songs.

Composer rights, which are due publisher royalties, are different from artist's royalties; labels oversee the latter while publishing royalties are distributed by the American Society of Composers, Authors and Publishers (ASCAP). But up to that point, Byrd had received neither.

"I said I would not cooperate until I had received a statement of royalties due me," Byrd says. "In response I received no statement, but a letter of agreement that in exchange for $6,000 I would waive all rights to past composer royalties. I signed in a New York minute. Since then, the publishers have sent a yearly statement and royalty check (the most recent was $1,800)."

But still no artist's royalties. Byrd's problem may have been caused by simple oversight, says McDonough. Sony's purchase of CBS Records and Columbia in 1987 is only one example of an ongoing massive industrywide consolidation, "and with consolidation, there are fewer people doing more work," McDonough says. "They don't have time to dedicate to these kinds of things." He suggests that Byrd hire a lawyer and an auditor who would check Sony's books and get a copy of his contract.

Next Page: "They can pretty much get away with anything"

• View blog reactions