Music Copyright Law Exam 2
Fictionalization
the transformation of a preexisting nonfiction work into a fictional work, such as a novel or screenplay
Dramatization
the transformation of a preexisting work into a work that can be performed on stage
Abridgments and Condensations
transformation of a preexisting work into a shorter version
When can the termination right be exercised?
-Any time during a five-year period between 35 and 40 years after the date of transfer EXCEPT that if the transfer included the right of publication, may be made during the 5 year period beginning at the end of 35 years from publication or 40 years from the transfer, whichever is earlier -The first one under this section of the law will be in 2013 (35 years after 1978) -Ex. 1 Transfer 1/1/1980, made with publication right, publication occurred on 6/20/1980 - when is the beginning and ending of the termination period? ANSWER: 35 years from 6/20/1980 (6/20/2015) or 40 years from 1/1/80 (1/1/2020) - whichever is earlier + 5 years = 6/20/2015 - 6/20/2020
Used CDs under the First Sale Doctrine
-Copyright holders (musical works, sound recordings) do not get paid again when a CD is sold from one person to another -Once upon a time there was a movement to lobby Congress for a resale royalty
Reproduction of Sound Recordings
- generally receive less protection under Copyright Law than other works
When is a work prepared within the scope of employment?
-1.if it is the type of work the employee is paid to perform -2.the work is performed substantially within work hours at the work place -3.the work is performed, at least in part, to benefit the employer
Community Property:
-9 states have laws stating that property acquired while people are married belongs to both spouses equally -can decide who owns what copyrights via contract (prenuptial or marital settlement agreement) so that the state law does not apply
Copyrighting the uncopyrightable
-A copyrightable derivative work can be made based on a work in the public domain (PD) -Can then make money from licensing out the arrangement instead of the original PD work
The Audio Home Recording Act of 1992
-Allowed consumers to make copies for their own use while compensating copyright owners for their losses -It applies to Digital Audio Recording Devices -Those designed or marketed for private use
Right to License Joint
-Any joint owner can authorize someone else to use the entire work; even without the consent of the other authors -an HFA (Harry Fox Agency) policy - they will grant a mechanical license for any song that they administer any share for -cannot issue an exclusive license (this would limit what the other joint owners could do
Termination under the 1976 Act
-Did away with the idea of renewal -Unusual property right - because of the impossibility of determining a work's value until it has been exploited -§ 203 - 1978 transfers forward -§ 304 - 1978 transfers backwards -This right CANNOT be waived by the author - even by contract -Does not apply to works made for hire -The rules are detailed and complex
Duty to account to co-owners
-Goes hand-in-hand with being able to license the work without the permission of the other joint owners -To account to the other joint owners for their share of the profits that you receive
Priority Rules for Transfers
-If there are conflicting transfers, the first transfer registered takes priority if it is registered first -If the first transfer is not registered first (i.e. a later transfer is registered first) it will still have priority if it is recorded within one month after it is made (or two months if it is made outside the US) -If the first transfer is not recorded or is recorded more than one month (two months xUS) after it is made, the transfer that is recorded first will take priority even if it is made subsequent to another transfer with two limitations: -Not applicable if the transfer is a gift or is inherited by will -Not applicable if the subsequent transferee had knowledge of the earlier transfer
Foreign Mechanical Royalty Rates
-In almost every country outside of the U.S. and Canada, mechanical royalty rates are based on a percentage of the retail sales price or the wholesale price the records sell for (in the U.S. and Canada, they are based on a flat penny rate) -One advantage = the rate gets adjusted based on increases or decreases of the price -One disadvantage = the more songs on a record, the less royalties each one is making
Renewal under the 1909 Act
-Initial period was 28 years from the date of first publication; then an additional renewal period of 28 years -The renewal right belonged to the author or his/her heirs BUT it could be assigned away if the author was still alive when the initial period expired -It was usually assigned as part of the initial transfer, defeating the purpose of the provision
Record Piracy
-Involves a violation of the copyright owner's (in the musical work and the sound recording) reproduction and distribution rights -Costs the music industry (songwriters, publishers, record companies, artists) $300 million a year in the U.S. and $5 billion a year worldwide
Royalty rate for DPDs:
-Is the same as the physical statutory rate -No royalties are due on DPDs of less than 30 seconds in duration -DPD mechanical licenses (just like physical) are also negotiable
Home Taping
-Making a copy for your own home use (including your car, your portable music player, etc.) -Analog technology - each copy made lost some quality; copies of copies got worse and worse -Digital technology - no loss in sound quality (and therefore more of a threat to sales) -Battle is owners of musical compositions and sound recordings versus consumer electronics industry -Cahn v. Sony Corp. -Brought by songwriters and publishers -Argued manufacturers and distributors of digital audio tape equipment and tapes were guilty of contributory and vicarious copyright infringement -Case settled (no court made a ruling) - part of the settlement was to push for the Audio Home Recording Act of 1992 (AHRA)
Established a royalty system
-Manufacturers and distributors are required to pay a royalty on sales -Royalty rate is 3% of the wholesale price (on tape) and 2% of the wholesale price (on equipment) -Has a minimum of $1 and a maximum of $8 -Royalties are paid to the Copyright Office -The Copyright Office distributes the money into two funds and then further based on record sales and radio airplay -Musical Works Fund - 1/3 of the money goes into this fund -50% - 50% split between songwriters and music publishers -Sound Recordings Fund - 2/3 of the money goes into this fund -4% of this is paid to non-featured performers -38.4% of this is paid to featured performers -57.6% of this is paid to sound recording owners
How to record a transfer
-Must fill out a Document Cover Sheet form -You can get this from the Copyright office -If the work has not previously been registered, do that too -$80 for the first title, $20 for each additional group of up to 10 additional ones -Probably will not want to record a full contract because of privacy issues
What must be done to exercise the termination right?
-Must give written notice, signed by the terminating party, to the transferee -If the transferee transferred the copyright to another party - have to send the notice to the other party (the current owner) -Notice must state the intended termination date -May be sent any time between 2 and 10 years before the termination date -A copy must also be filed with the copyright office
The Public Performance Right
-One of the exclusive rights granted by copyright law -Grants copyright owners the exclusive right to perform and to authorize others to perform their works publicly -To recite, render, play, dance, or act it, either directly or by means of any device or process or, in the case of a motion picture or other audiovisual work, to show its images in any sequence or to make the sounds accompanying it audible
Degree of Protection in Derivative Work
-Only extends to the original material contributed by the author of the derivative work -DOES NOT affect the copyright of the underlying preexisting work -Can only get protection if you obtained permission of the owner of the underlying work
Intent of Joint and Intial
-Only have to intend, don't have to create at the same exact time -derivative work (a work based upon one or more pre-existing works) what courts will look at: -Behavior of the authors -Quality and quantity of the contribution -If it has been registered -May not actually contribute anything and yet still be one of several owners -transfer of copyright via contract -contributions to not have to be equal in a joint ownership
The Dubbing Limitation
-Only protects against actual copying (a.k.a. dubbing); does not prevent imitation -This is why cover records do not infringe on the original recordings
The Diamond Rio Case (1998)
-RIAA v. maker of the RIO MP3 player -Court found that an MP3 player is not a digital recording device - it simply accepts transfers of files -The court found that there was an exemption for all files contained on a computer (which has now made the AHRA almost useless in the digital music age) Sampling: -Using part of an existing work in order to create a new work -Modern form of this began in the 1980s, especially in the rap/hip-hop music
Negotiating Mechanical License
-Rarely does anybody "go compulsory"!!! -Why? The requirements are strict and impractical and too burdensome -MOST mechanical licenses are negotiated between the record company and the music publisher (or an agency representing them such as the Harry Fox Agency) -Major differences: -Royalty accounting done quarterly instead of monthly -No annual accounting required -Royalties are only paid on what is sold (i.e. shipped and not returned) -Rate is either statutory rate, or a reduced rate (commonly 75% of the statutory rate) in special circumstances
Fighting Record Piracy
-Recording Industry Association of America (RIAA) -International Federation of the Phonographic Industry (IFPI) -Both organizations work to fight piracy
Addressed copy protection
-Requires manufacturers and distributors of equipment to include technology to prevent serial copying (making copies from copies)
Obtaining sample clearance
-Suit against Biz Markie over a sample of "Alone Again Naturally" by Gilbert O'Sullivan - used 10 seconds looped throughout the song -After recording, before release, Warner requested a sample license. -Without receiving a reply or permission, Warner released the record -Warner maintained that O'Sullivan had impliedly agreed that permission would be granted for a price to be agreed in the future -The court disagreed with Warner; quoting "Thou shalt not steal"; the case ended up settling after the court issued a preliminary injunction requiring Warner to stop selling the new song
Created an infringement exception
-The act exempts consumers from liability for copyright infringement for home taping of copyrighted works -The taping must be for noncommercial use
Recording Copyright Transfers
-The act of making a record of the transfer (not sound recordings) -Any document pertaining to copyright may be recorded in the Copyright Office. -The document becomes indexed and is available to the public. -Many owners of copyright never register the work or record any transfers with the office, making it hard to determine who actually owns a copyrighted work
The First Sale Doctrine
-The owner of a particular copy or phonorecord lawfully made...or any person authorized by such owner, is entitled, without the authority of the copyright owner, to sell or otherwise dispose of the possession of that copy or phonorecord -Sell or otherwise dispose of DOES NOT MEAN make a copy of -This is how we are able to rent DVDs or sell used CDs -Does not apply if the first sale occurs outside of the US
Rationale for the termination right
-To protect authors from transfers that turn out to be bad deals for the author -Contained in the renewal provision of the 1909 Act -Contained in the termination provision of the 1976 Act
Transfers made beginning of Jan 1, 1978
-Transferred by the author on or after 1/1/78 -By the author or author's successors -A majority of the persons who hold the termination interest is required to exercise the right.
Examples of Derivative Right
-Translation -Musical arrangement -Dramatization -Fictionalization -Motion picture version -Sound recording -Art reproduction -Abridgement -Condensation
Mechanical Royalty Licensing Agencies
-U.S. publishers use the Harry Fox Agency -charges publishers a 11.5% fee for its services, cheaper than the publishers maintaining staff to handle mechanicals themselves -HFA reguallary audits the major record companies- this benefits their publisher clients -Benefits record companies because they only need to go to one place to obtain licenses, rather than individual publishers (although there is still a great deal of direct-to-publisher licensing done) -Benefits publishers/authors because it has reciprocal agreements with similar agencies in other countries -Only grants licenses for U.S. mechanicals; will not grant lyric reprint licenses (have to go direct for this)
Sampling
-Using part of an existing work in order to create a new work -Modern form of this began in the 1980s, especially in the rap/hip-hop music
Joint authorship problems
-Usually happens when the contributors do not discuss how to split the ownership -Common when songs are composed in the recording studio -must be agreed and put in writing
Derivative musical arrangements
-Usually musical works are arranged in order to be performed (live or for recording) -If an author makes substantial variations to a musical work, the resulting work will be a copyrightable derivative work -Have to get permission to create the derivative work
Obtaining a Compulsory License
-You MUST comply with the provisions of Section 115 of the Copyright Law and the regulations of the Copyright Office -The primary purpose must be to distribute it to the public for private use (e.g. on CD, cassette, as a digital download) -You are allowed to make an arrangement of the song to the extent necessary to conform the work to the style or manner of interpretation of your performance -very limited, cannot change the basic melody or character of the work; only minor changes are allowed; major changes result in a derivative work -You MUST file a Notice of Intention to Obtain Compulsory License with the copyright owner -Notice must be made no later than 30 days from making the recording and BEFORE distributing it -If you fail to give this notice, and do not enter into a negotiated license, you will be SUBJECT TO LIABILITY for INFRINGEMENT!!!!!! -If you cannot find the copyright owner, you can file something with the Copyright Office so that you are covered; you will have to pay royalties once the owner is identified -You MUST then pay the statutory mechanical royalty rate for each record made and distributed. -most licenses in US are not compulsory -The rate applies to each song (e.g. 10 songs on an album = rate is 10 x the statutory rate) -For every phonorecord made and distributed on or after January 1, 2006, the royalty rate payable with respect to each work embodied in the phonorecord shall be either 9.1 cents, or 1.75 cents per minute of playing time or fraction thereof, whichever amount is larger. -You MUST pay royalties on a monthly basis, by the 20th day of each month, including royalties for the prior month. -statements must be made under oath -annual statement must be certified by a CPA -you fail to comply, the copyright owner can send you a Notice of Termination of the license
How agreement right is organized
-agreements include language describing an artist's performance as a contribution to a collective work, one of the listed categories of works for hire -Label says each individual sound recording is contribution to the collective work or compilation and therefore a work made for hire -Label says each individual sound recording is contribution to the collective work or compilation and therefore a work made for hire
Rights and Duties of Joint
-copyright law provides some default rules; joint owners can agree their own different rules - in writing -Joint owners are equal - each co-author owns an equal share of the work -joint owner owns an equal, undivided interest
The Derivative Right
-exclusive rights granted by copyright law -Grants copyright owners the exclusive right to prepare derivative works based upon their copyrighted work -takes an existing work and adapts it in some way in order to create a new work -sometimes called adaptation right -Grants copyright owners the exclusive right to distribute, and to authorize others to distribute, the work to the public by sale or other transfer of ownership, rental, lease or lending
Derivative Right was
-not always the case that derivative works based on music that is in the public domain were entitled to copyright protection -The 1909 Copyright Act granted protection to derivative works (and protection continues via the 1976 Act)
Works made for hire
-when a person who treats a work is not considered to be the author and therefore not the initial owner of the copyright -an exception to the initial ownership rules -person or party on whose behalf the work was created is considered to be the author and initial owner of the copyright -corp. or business entity can qualify as an author in this situation; the actual greater has no rights
Public Performance
1) a public performance occurs when a work is performed at a place open to the public (concert venues, nightclubs, bars, restaurants, retail stores) (2) a public performance occurs when a work is performed where a substantial number of people other than family and friends are gathered (semi-public places like private clubs, schools, workplaces) (3) a public performance occurs when a work is transmitted to a place open to the public or where a substantial number of people other than family or friends are gathered (e.g. radio playing in a bar) (4) A public performance occurs when a work is transmitted by a device, regardless of whether the public receives it in the same or separate places or at the same time, even if people do not tune in
how works for hire are treated by copyright law
1. initial ownership belongs to the employer / commissioning party (not the author) 2. copyright term (i.e. protection) lasts 95 years from publication or 120 years from creation, whichever expires first (not tied to the authors life) 3. There is no termination right
Termination for Transfer
1.Rationale for the termination right 2.Renewal under the 1909 Act 3.Termination under the 1976 Act
Performing Rights Organization history
1939 Broadcast Music Incorporated (BMI) was created by a group of broadcasters in response to ASCAP's increasing license fees In 1941 the majority of radio stations stopped playing ASCAP music, eventually forcing ASCAP to reduce its license fees Since then, all three co-exist, representing different authors
Synchronization License
Allows the licensee (movie or tv producer) to synchronize a copyrighted musical work in audiovisual recordings such as movies, television programs, tv commercials, etc. including the public performance of the audiovisual work in return for a flat fee and/or royalty -used when talking about licensing a sound recording for the same type of use -order to be able to include the music in copies reproduced and distributed for home use, you also need to obtain a reproduction license (may be that this is included as additional language in the sync license)
Performance License
Allows the licensee (radio or tv station, concert venue, night club, restaurant) to publicly perform a copyrighted musical work in return for a royalty
Mechanical License
Allows the licensee (record company) to reproduce and distribute a copyrighted musical work in recordings in return for a royalty
Print License
Allows the licensee to reproduce and distribute a copyrighted musical work in printed form such as sheet music in return for a royalty Section 106(1) gives the copyright owner the exclusive right to reproduce, and to authorize others to reproduce, the copyrighted work -involves producing a material object in which the copyrighted work is contained or embodied (even if in only one object rather than hundreds) -Compelled to issue a license
Penalties for Record Piracy
Civil awards for actual damages, lost profits, statutory damages up to $150,000 per infringement -Criminal penalties - can be up to 5 years in prison and $250,000 in fines -Prohibited by federal copyright law, as well as other federal and state laws 1. Federal Anti Bootleg Statute 2. No Electronic Theft Act
Limitations on the Public Performance Right Section 110 lists exceptions
Face-to-face teaching activities Only students and teachers Must be face-to-face and for teaching purposes Must be at a non-profit educational institution Must be in a classroom or similar place See example 7.4 page 115
PRO operations
How does the PRO know how many times various songs are performed? They use sampling techniques as well a census The sampling technique allows them to estimate how many times a song is performed Radio and TV are sampled - live concert venues are not (based on a faulty assumption) Then apply a formula to assign weight or value to different performances, considering size of the potential audience, the time of the performance, and the type of performance ASCAP and BMI are non-profit organizations with operating expenses around 15% of the total money collected (SESAC is for-profit)
The 1976 Copyright Act includes a Termination Right
It cannot be contractually given up and allows the original content creator to "reclaim" the copyright to their works -Congress recognized the disparity in bargaining power between creators and assignees, usually corporations, and provided a practical compromise that recognizes the interests of both sides -acknowledges the impossibility of determining the value of a work until it has been exploited -Ideally, artists would have the opportunity to sign better deals after the value of their work is recognized and/or exploited
Reproduction of Musical Work
LIMITED by the compulsory mechanical license -most cases, licenses are negotiated -BUT the compulsory mechanical license provision says that under certain circumstances a mechanical license can be obtained WITHOUT the permission of the copyright owner -Compulsory mechanical license provision is found in Section 115 of the 1976 Copyright Act -Once a musical composition has been distributed in phonorecords in the U.S. with the copyright owner's permission, anyone can reproduce the composition -Copyright owner has ABSOLUTE control over the first use of its song on phonorecord -After that, Copyright owner CANNOT STOP others from using its song on phonorecords -Only applies to non-dramatic musical works -Phonorecords ARE NOT THE SAME as audiovisual works
Public Performance Right includes:
Live performances (e.g. by a band) Recorded performances (e.g. by a DJ in a club) Transmitted performances (e.g. via the radio
Legacy sales
Most income sales accrues to the benefit of the record companies rather than the artists or their estates because labels pay royalties after recouping production/marketing costs -Recoupment occurs at the artist's royalty rate -•Labels make money even if artist has not earned enough to repay the label production/marketing expenses -•The possibility of losing these recordings could have a significant negative economic impact on labels
Requirements for Derivative Work
Must borrow from another work -Must recast, transform or adapt the work upon which it is based -MUST obtain the permission from the copyright owner of the underlying work if it is protected by copyright
Record Rental Amendment Act of 1984
Must have permission of the copyright owners (musical work and sound recording) in order to rent, lease or lend a record (NOT the same for movies) - which is why there is no real record rental business
Performing Rights Organizations
Public performance right began under 1909 Act, but there was no practical way to license it and collect money for it 1914 American Society of Composers, Authors and Publishers (ASCAP) was formed in order to act as a clearinghouse for licensing performances and collecting royalties Not easy to accept the idea of paying for performance Herbert v. Shanley: a direct charge to the consumer is not required in order for a license to be required 1931 Society of European Stage Authors and Composers (SESAC) was formed originally representing European entities
Record rental under the first sale Doctrine
Record Rental Amendment Act of 1984
Initial ownership
Ownership begins upon creation of the work -do not have to register -not dependent on registration -author of the work is the initial owner -may Authorize others to exercise any of the rights -Transfer ownership to others
What termination right means for record labels and music publishers:
Record labels and music publishers could lose a vital portion of their income - may prevent them from investing in new artists and songwriters •There are two major obstacles confronting artists and songwriters in terminating the transfer of rights in their recordings and songs: (1) This only apply to records and songs that were not created as works for hire (2) The artist may not have been the only author of the recording •Standard recording contracts almost always state that any records made pursuant to the recording agreement are works for hire •This would make the record company the author of each record
Foreign PROs
SACEM (Societe des Auteurs, Compositeurs et Editeurs de Musique) was created in 1851 in France (long before ASCAP) Virtually every country around the world has a performing rights organization All of them have reciprocal relationships with each other enabling foreign songwriters and publishers to get paid when their music is performed in other countries CISAC (International Confederation of Societies of Authors and Composers) is the international body representing all of these societies
Arrangements under the compulsory license
Section 115 only provides for a LIMITED arrangement -The compulsory license includes the privilege of making a musical arrangement of the work to the extent necessary to conform it to the style or manner of interpretation of the performance involved. -If you make more than a limited arrangement, you must obtain permission from the copyright owner (section 115 does not grant it to you) -Examples -Changing the key = ok -switching the song from a male to a female perspective (e.g. lyrics from "I love her" to "I love him") = ok -Changing an entire verse = not ok === derivative work
When Do They Have To Serve Notice?
The artist or statutory successor may give notice of termination no less than two years and no more than ten years before the date that the transfer will terminate
Digital Phono record Deliveries (DPDs)
The term given to phono records that are delivered digitally rather than physically -The Digital Performance Right in Sound Recording Act (1995) amended Section 115 of the Copyright Act, extending the compulsory mechanical license to certain forms of digital distribution -each individual delivery of a phonorecord by digital transmission of a sound recording which results in a specifically identifiable reproduction by or for any transmission recipient of a phonorecord of that sound recording, regardless of whether the digital transmission is also a public performance of the sound recording or any nondramatic musical work embodied therein. A digital phonorecord delivery does not result from a real-time, non-interactive subscription transmission of a sound recording where no reproduction of the sound recording or the musical work embodied therein is made from the inception of the transmission through to its receipt by the transmission recipient in order to make the sound recording audible. -When you buy a download at iTunes, you are receiving a DPD
Operations of PROs
The types of licenses issued by the PROs are blanket licenses giving the licensee the right to publicly perform any music in the PRO's repertory an unlimited number of times for a set fee The amount of the license depends primarily on the licensee's potential audience size, gross revenue, and the amount of music used Who needs these licenses? Concert venues, nightclubs...can you think of who else?
PRO
They all operate in a similar manner Songwriters and publishers must join the PRO The writers and publishers transfer a non-exclusive right to license nondramatic public performances of their songs to the PRO PRO has 3 main responsibilities: (1) issuing licenses and collecting fees (2) monitoring public performances of music (3) paying songwriters and publishers their performance royalties
Limitations on the Public Performance Right
Under the 1909 Act, copyright owners could only control for-profit performances Under the 1976 Act, this was expanded to include for-profit and non-profit performances Section 110 lists exceptions - public performances that are allowed without the copyright owners permission
PRO operations continued
Writers and publishers must register their songs with the PRO in order to get paid royalties After taking their 15% for expenses, PROs pay 50% of the money of a song (the "publisher's share"); and the other 50% directly to the writer(s) of a song (the "writer's share")
Translation to new medium
eg. Sound recordings
Recordation
is not mandatory, but has benefits -Prevents transfers of the same copyright multiple times -Gives constructive notice to everyone
Federal Anti-Bootleg Statute
prevents unauthorized recording and distribution of live performances
No Electronic Theft Act
provides for criminal prosecution even if no monetary profit or commercial gain is derived (file sharing)
Translation to new language
self explanatory- is considered to involve originality and creativity
Joint Ownership
work prepare by two or more authors with the intention that their contributions be merged into inseparable or interdependent parts of a unitary whole -are co-owners of the copyright in the work -Requirements: 1. Two or more authors must contribute to the creation of the work. 2.They must all intend to combine their contributions into one single work
Editoral Revisions
work that revises an earlier work
Who can terminate?
•If the artist is deceased his/her statutory successor (IE: surviving spouse, children, grandchildren) can terminate •If none are alive, the author's executor, administrator, personal representative, or trustee can terminate •If the Artist is a band or group, termination requires a majority vote of the joint authors or their successors
Record Company and Music Publisher:
•Masters and songs designated Works for Hire •Label retains ownership of the masters - music publisher ownership of songs •Label and publisher continues to make millions of $
Artist and Songwriter
•Masters and songs not designated Works for Hire •Can exercise their Termination Right - reclaim masters and songs •Artist and songwriter make millions of $ from the sales of their legacy recordings and songs
Under employee/employer criteria most sound recordings would not seem to be works for hire because:
•Most record companies generally do not 'control' artists when they are in the studio making a record •Artists almost never receive employee benefits (health care etc.) •Artists don't record on company premises •Record companies generally do not withhold payroll taxes from any advances or royalties •Some experts contend that labels may be reluctant to make the employee argument because they may be responsible for paying back taxes •Most recording agreements specifically state that the artists are not employees
Content of Notice
•Notice must be in writing signed by the owner(s) of the termination interests or by their duly authorized agents, and must state the effective date of the termination •Notice must also comply, in form, content, and manner of service, with requirements of the Register of Copyrights
To Whom Should They Send Notice
•Notice must be served upon the grantee (i.e., the label or music publisher with whom the artist or songwriter contracted) or the grantee's successor in title •Copy of Notice must also be recorded in the Copyright Office before the effective date of termination, as a condition to its taking effect
Another Problem - Artist May Not Be the Only Author
•Producers may be considered authors too! •Because they don't necessarily act at the direction of the label or the artist although they usually enter into work for hire agreements with the label too •They are often an integral part of the creative process, and may be deemed to be joint authors •Artist may have to sort out new deal with the producer prior to exploiting the re-captured recordings or risk lawsuit by producer •Possible audio engineers and session musicians may have a claim of authorship •These would be harder cases to argue as they generally do work at the direction of others, taxes are usually withheld and they may well be considered to be employees
Whats next for Term right
•ruling, some recording artists, songwriters and their lawyers are issuing termination notices, with the intent to distribute these recordings and songs themselves, while daring the record companies and music publishers to stop them -court decides on case by case basis
Works for Hire in Termination Rights:
•the recording artist would have no right to terminate his grant of rights to the label as he/she is not the author of the recording Section 101 of the Copyright Act defines a "work for hire": (1)a work prepared by an employee within the scope of his or her employment; or (2) a work 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, if the parties expressly agree in a written instrument signed by them that the work shall be considered a "work made for hire"
