by Matthew B. Harrison, Esq.
Harrison Legal Group
SPRINGFIELD, Mass. –– Understanding ownership rights of audio content is one of the more common issues to cross my desk. While most of the information that exists on the topic, including court cases and their analysis, is centered on music-based audio, the rules can be similarly applied to both spoken- or music-based content. Therefore, this article will examine the application of such rules to music and aptly apply them to spoken-word content.
A work made for hire is defined as a work created by an employee within the scope of the employee’s employment. A work made for hire can also be created by a contractual agreement between two parties.
Unlike radio contracts, most recording contracts are classified as independent contractor relationships and as such, recording contracts are not usually deemed as works made for hire. However, record labels are adding work made for hire clauses.
Under the definition of “work made for hire” in the Copyright Act, works are eligible for such status if there is an employment relationship or if certain types of works are commissioned (as detailed in a contract). These include “a contribution to a collective work” and “a compilation.” Both of these categories include sound recordings.
Work made for hire clauses in recording contracts have serious legal implications for artists. If the sound recording is classified as a work made for hire, the record label can retain the copyright to the work and the masters of the recording.
As a general rule, artists retain the right to have all masters returned after a 10-year incubatory period. But, now that is changing as the industry standard is shifting from independent contractor relationships to works made for hire.
In September 2010, Bob Marley’s family lost a lawsuit against Island Records seeking the copyrights to several of his best recordings. “Each of the [recording] agreements provided that the sound recordings were the ‘absolute property’ of Island,” U.S. District Judge Denise Cote wrote. She added that it was irrelevant that Marley might have maintained artistic control over the recording process. What mattered, she said, was that Island had a contractual “right” to accept or reject what he produced.
If the parties do not expressly agree in writing that a sound recording is a work made for hire, and an employer/employee agreement is not in effect, then the collaborators are joint authors of that sound recording. The applicable sections of copyright law, taken together, mean that unless each author’s contribution is distinct, discrete and separately distinguishable within the collaborative work, the law may deem them to be joint owners of the whole. Absent an agreement to the contrary, authors own the work jointly and equally.
Each joint author, therefore, has the right to exercise any or all of the exclusive rights inherent in the joint work. This means that each author can grant third parties permission to use the work on a non-exclusive basis without the consent of other joint authors. Each author may also transfer his or her entire ownership interest to another person without the other joint authors’ consent. Each author may also update the work for his or her own purposes. Additionally, each joint author has a duty to account to the other joint authors for any profits received from licensing the joint work. This certainly could be a problem if you intended on maintaining exclusive control over the joint work.
What does this mean for you? It means that you need to read and understand the paperwork that you are signing when you are working on creating audio content.
Matthew B. Harrison, an entertainment and media attorney, is a senior partner with Harrison Strategies, LLC based in Springfield, Massachusetts. He can be phoned at 413-565-5413 or e-mailed at Matthew@matthewharrison.com. Meet him at the New Media Seminar June 10-11 in New York City.