Principle that copyright belongs to creator may not apply if song was created while employed by record company.
A federal lawsuit filed recently in U.S. District Court in Pennsylvania alleges that the copyright in the classic song “War” recorded by reggae legend Bob Marley belongs to its co-author rather than its its record company. According to the Hollywood Reporter, songwriter Allan Cole co-wrote “War” and believed that Tuff Gong Music, Mr. Marley’s label, had registered the copyright on his behalf. The complaint alleges that the songwriter was never employed by the record company.
The question of employment is likely to be at the center of the litigation. The general rule in copyright law is that from the moment a creative work is fixed in a tangible form—set in a print or electronic manuscript, a sound recording, a computer software program, or other such concrete medium—the copyright becomes the property of the author who created it. But when a work is created by an employee within the scope of his or her employment, then it is by definition a “work made for hire.” 17 U.S.C. § 101. As the Copyright Office explains, if “a work is made for hire, an employer is considered the author even if an employee actually created the work. The employer can be a firm, an organization, or an individual.”
Work Made for Hire and Employees
So if a record company employs a songwriter who writes a song while he or she is so employed, the copyright in that song belongs not to the songwriter but to the company. The Copyright Office describes examples of works made for hire in the music industry as a “musical arrangement written for a music company by a salaried arranger on the company’s staff” and a “sound recording created by salaried staff engineers of a record company.”
But proving whether or not arrangers, engineers, or other creative professionals were employees can often be a challenge. If the songwriter in our example were only an independent contractor, then the song would not be a work made for hire——the songwriter would own the copyright——unless the record company had taken two important steps.
Work Made for Hire and Independent Contractors
First, there must be a written agreement between the parties specifying that the work is a work made for hire. Second, the work must fall within one of nine categories. If it does not, then it cannot be a work made for hire even if there is a written agreement stating otherwise. The work must be one specially ordered or commissioned for use:
as a contribution to a collective work;
as a 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.
Most of these obviously don’t apply to music, so there could be at least a question of whether “War” qualifies as a work made for hire assuming that the record company in this example did not employ the songwriter. Even if the song does not fit into one of the nine categories, rights to work created by an independent contractor are often assigned to the hiring party.
Given the expense and uncertainty of a lawsuit, of course, legal battles like these should certainly be avoided. If you are an independent songwriter, composer, or other music industry professional, knowing more about works made for hire and assignments should help you negotiate to keep your rights. Registering your creative works and writing or composing them under written agreements should help you protect those rights before a copyright “War” breaks out.
Inspiration Spaceship is a Portland creative law firm for songwriters, composers, recording artists, and other music talent and advises on copyright issues and creative legal matters. Contact the firm with any questions about this post.