|
by Donald S. Passman
Remember when Teddy Kennedy hired someone to take an exam
for him at Harvard? Well, the copyright law is one place where
this is perfectly legal. It's done with works for hire (technically
known as a work made for hire in the copyright law). A "work
for hire" is a situation where you hire someone else to
create for you, and if you observe the technical formalities,
you actually become the author of the work insofar as the
copyright law is concerned. And when I say "the author," I
really mean THE author. It's as if the person you hired doesn't
even exist (in the eyes of the copyright law), and indeed
he or she needn't even be mentioned on the copyright registration
form.
I suspect (but I really don't know, and would hate to disillusion
myself by researching it) that "works for hire" developed
to cover such things as fabric companies that printed copyrighted
designs on their cloth, and wanted to be sure that the company
(not the dork who actually designed the pattern) was the owner
of the copyright. Seems reasonable enough.
Here's an example of how it works in show biz. Suppose you
are Walt Disney Pictures and you hire someone to write the
theme for Snow White. In this situation, Walt Disney Pictures
(the corporation) becomes the author of the work, and the
person hired to write it disappears. Does this mean that the
writer won't get his or her name listed as the writer of the
song (e.g. on sheet music, in the film, etc.)? Usually not;
the real creator customarily gets credit. (But sometimes--for
example, with jingles written for radio and television commercials--a
creator doesn't.) Also, the amount of compensation paid to
the real creator is normally not affected by this type of
arrangement--most of the time they're paid exactly the same
whether or not the work is "for hire".
A work for hire can be created under the copyright law in
only one of two ways, which are a bit technical:
1. If the work is made by an employee within the scope of
employment, it is a work for hire. An example of this is the
fabric designer I mentioned before. The test of whether there
is "employment" is not the one used for the income tax laws,
or in fact for any other type laws. The cases treat it as
situations where the employer is actually "directing or supervising"
the creation of the work, in a very specific way.
The major case in this area is Community for Creative Non-Violence
vs. Reid, 490 U.S. 730-1989, in which the Supreme Court held
that a Vietnam memorial sculpture was not a "work for hire"
because the people who paid to have the work created did not
exercise control over the details of the work, did not supply
the tools, had no on-going employment relationship, etc. Normally
(although not always), a songwriter is given quite a bit of
latitude in his or her creation. However, if a songwriter
is given very specific instructions, and is supervised during
the process, he or she might be considered an employee.
2. If not created by an employee within the scope of employment,
a work can only be a work for hire if it is: a) commissioned
(meaning created at the request of someone); b) created under
a written agreement, and c) created for use in one of the
following:
(a) A motion picture or other audiovisual work. This is
the most common area where songs are treated as works for
hire--musical scores, title songs written for films, etc.
Remember, these songs do not have to be written by employees.
There only needs to be a written agreement saying they are
works for hire, and that they are commissioned for use in
an audiovisual work. (Note: This category does not include
phonograph records. Great job by the motion picture lobbyists;
where were the record lobbyists?)
(b) A Collective Work. A collective work is a collection
of individual works which, independently, are capable of copyright.
Examples are an anthology of short stories; a magazine containing
several copyrightable articles; an encyclopedia, etc.
(c) A Compilation. A compilation is a much broader term
than collective work, although is basically the same thing.
The term compilation means a work made by compiling a bunch
of things, and thus it includes collective works (where the
parts are separately copyrightable). However, it also includes
works where the compiled materials are not, such as a reference
index to the Bible.
(d) A Translation. A translation of a foreign language.
(e) A Supplementary Work. A supplementary work which is
a work supplementing another work (clever definitions, these
copyright guys, eh?). such as an arrangement of a song, an
introduction to a book, etc.
Donald Passman is a Los Angeles-based
music attorney with the firm of Gang, Tyre, Ramer & Brown.
Specializing in music business law for over 20 years, his
clients include major publishers, record companies, film companies,
managers, producers, songwriters, and artists such as REM,
Janet Jackson, Quincy Jones, Tina Turner and Green Day. On
a regular basis, we will be excerpting from Mr. Passman's
best-selling book, "All You Need To Know About The Music
Business."
From "All You Need To Know About The
Music Business" by Donald S. Passman. ©1991, 1994, 1997
by Donald S. Passman. Reprinted by permission of Simon & Schuster,
Inc.
|
