Copyright Recapture
The United States District Court of the Southern District of New York recently allowed a class action to proceed against Sony Music Entertainment and Universal Music Group. The musicians/plaintiffs in these cases are attempting to “recapture” their copyrights under section 203 of the Copyright Act. Although a ruling on the case has yet to be determined, the potential implications are significant for recording artists who sign label agreements that contain work for hire language.
Generally speaking, a work for hire (or a work made for hire) is a work that is made by someone that is hired by someone else. As described below, the person commissioning the work becomes the author of the work. The person who was commissioned to create the work is non-existence in terms of legal authorship.
So how do you determine if the work-for-hire language included in your agreement is actually valid? First, section 203 states that the work must be one of the following:
- a contribution to a collective work,
- as part of a motion picture or other audiovisual work
- as a translation
- as a supplementary work
- as a compilation
- as an instructional text
- as a test
- as answer material for a test, or
- as an atlas
Second, the agreement must explicitly state that the agreement itself and all work created pursuant to it qualifies as a work for hire. Only under these two conditions can the work-for-hire criteria be met.
If you signed a recording agreement that meets the work-for-hire criteria, then the rights within it are not available for recapture. As mentioned above, the reason is because the “receiver” of the rights under the recording agreement is considered the author of the work.
The Sony/UMG lawsuit has plaintiffs challenging the long-held practice that sound recordings delivered to a label for an album or otherwise are not considered contributions to a collective work and therefore the work cannot be considered a work-for-hire owned by the labels. The implications of this case are significant because artists who are signed under work for hire record label agreements are not considered the authors of their recorded performances. In most recording agreements, (although this is drastically changing as the industry evolves) there are provisions within the rights section of the agreement that have language such as, “All master recordings delivered by Artist will be deemed works made for hire within the meaning of the Copyright Act.” What this means for the artists signing these agreements is that the record label is not only the owner of the work, but also the author of the work. The language immediately following in these work for hire contract provisions also states that if for some reason the agreement is not a work for hire then all right, title, and interest is assigned to the label. This point of assignment is important when considering the ability of an artist to recapture their rights.
In order to understand why the assignment language is important in the realm of sound recordings, we can look to the other side of the coin in music copyright – the composition (written song) copyright. A songwriter looking to exploit their written songs may sign a publishing agreement. Unlike a recording agreement, which deals with the masters/sound recording copyright of the recording artist, publishing agreements for the written songs of the songwriter are typically not drafted as work-for-hires. In most publishing agreements, the copyright to the songs written during the term of the agreement are assigned by the writer to the publisher for the life of the copyright. Unlike a recording artist in a record label, the writer, not the publisher, is still legally considered the author of the work. Which means, after 35 years, the rights assigned to the publisher may be recaptured by the original writer in part because these agreements are an assignment of copyright rather than a “work for hire.”
There could be significant ripple effects in the recording industry and the relationships record labels have with their artists if the court ultimately decides that the plaintiff’s recording agreements are not actually work for hire agreements. Like writers in publishing agreements, recording artists will be considered the authors of their work and, so, may be able to recapture and control their work after 35 years. Further, record labels may also consider restructuring the ownership rights within their recording agreements or hiring artists as employees. We will keep a close eye on this case’s progression and let you know as information becomes available.
This article is for informational purposes only. If you have any questions, please contact our team at Troglia•Kaplan Attorneys.