Work-for-hire: Is it illegal ?

[SongLoft]

Hello all

I’m a composer and I’ve had this discussion before with entertainment attorneys who tell me the “work-for-hire” clauses I find in most of my contracts with Production Music companies are technically incorrect in their usage.

I believe it’s a copyright issue; work-for-hire, under copyright law, was only intended for a couple specific instance. However, music companies (and ad agencies) have used it in their contracts for as long as I can remember. I think the problem is that it lets companies accrue the rights to music without having to have composers as their “employees”

It’s become an abuse of the copyright law.

Does anyone know if this common practice is just out of legal ignorance OR is there something  specific to CA laws that allow it to exist ?

 

thanks for any info

[MichaelL]

No it is not illegal, but there are certain conditions that define a work for hire. I don’t have time to explain it.

Here’s a PDF  from the copyright office:

http://www.copyright.gov/circs/circ09.pdf

Short answer:

It really depends on which production music companies you are talking about. Giving your music to Jingle Punks, or a similar library, for no money, even on an exclusive basis IS NOT a work for hire. Getting paid by Megatrax to produce a collection of cues, most likely is.

[SongLoft]

thanks Michael!

According to some “legal opinions” (unless I’m reading incorrectly here…) even if there was a payment made for producing a group of cues, musical works don’t seem to be covered under the nine categories of the U.S. Copyright Act.

Here’s a weblink for reference:

http://www.stopworkforhire.com/site2/legal-perspective/

It would seem work-for-hire only technically applies to a few specific instances right ?

thanks

[MichaelL]

Technically yes. But….if you sign a contract that expressly states the work in question is a work for hire, then it is.

Unfortunately, you are tilting at windmills with this one. No major exclusive library is going to pay for your work without acquiring ownership. That’s just the way the business works.

[SongLoft]

thanks for the input Michael

[Gael MacGregor]

Hi SongLoft,

Michael L is correct that the ship has sailed on W4H, but here’s a little background for you, and what you need to do to protect yourself as you wade through the legal jargon in your license and agreements…

At one time, within the film and music library worlds, composers were hired to do one thing: COMPOSE a work, whether it was for a film score or for inclusion in a music library. All associated costs were borne by those contracting the work (the film studio, the library or whoever). That included arrangers, copyists, engineers, musicians, conductors (even if the composer also conducted, he/she received a separate fee), studio time, tape stock, and every other associated cost.

As such, one can argue that it was not an unfair exchange: The composer was paid a fair fee (sometimes a pretty hefty one) for writing the work, and the person paying to have it created and recorded then owned both the publishing and master rights. The composer still retained his/her WRITER’s portion of the work, and shared in upfront license fees based on their agreement with the library and/or studio/film company.

Then came what is known as “all-in packages”. This means that the composer not only composes the work, but is responsible for delivering (in whatever format the library or film company designates) a final master of a recording that embodies the composition. For this, the composer is usually paid a fee (which continues to decline), but ANY costs associated with creating the recording are borne by the composer. Any musicians, engineers or other personnel necessary to complete the work are paid out of the package fee the composer receives.

No, it’s not fair, but yes, it is legal IF you sign the agreement which grants the rights to the person paying you for your work, AND the language does not conflict with copyright law. There are a lot of artists who are beginning to sue for the rights to their master recordings because they were NOT included in the definition of a work-made-for-hire under the 1976 copyright law. It should be noted, though, these are works created beginning in 1978 which are set to be available (for what one might consider a de facto”reversion”) beginning in 2013. It’s a really complicated scenario, requires specific, lengthy and detailed filings and legal proceedings to reclaim the recordings, and there’s a different process for reclaiming the rights to the copyrights for the works themselves.

The costs in creating a work and a recording of it, and the library industry’s desire to NOT be financially responsible for the creation of the works and their recordings, is partly why so many non-exclusive “re-titling” libraries have popped up over the years — which opens up a whole different can o’ worms, but I digress…

Bottom line?

If you don’t like the terms of a contract you’re presented, don’t sign it. Look for real non-exclusive situations where you and the “plugger” share in up-front license fees, but they keep their mitts off your publishing. If you’re composing a score for a low-budget indie film, negotiate terms that allow you to license your work on a “limited exclusivity” basis (where the music is exclusive to their film for 18-36 months, but then you can license it wherever and however you want, because you own it).

But know that the music library world has dug in their heels, as have the major film studios. They want as much ownership as possible for the least amount of financial output. They want creative slaves to do their bidding, and want us all to be grateful for the crumbs.

As with any industry, as long as there is someone to say “YES” to an unfair deal when others say “NO”, we will see no change. Unfortunately, too many have been beaten down and are scrambling for the scraps being thrown into the pit.

Until we, as an industry, are committed to fair practices that properly reward the rank-and-file creators (not just the big names), this will continue. 🙁

All the best,

Gael MacGregor

[MichaelL]

Good to “hear” your voice again Gael.

Welcome back!

Cheers,

Michael

[Art Munson]

If you don’t like the terms of a contract you’re presented, don’t sign it.

Sweet.

[Jay]

“If you’re composing a score for a low-budget indie film, negotiate terms that allow you to license your work on a “limited exclusivity” basis (where the music is exclusive to their film for 18-36 months, but then you can license it wherever and however you want, because you own it)”

Thanks Gael…i’m actually in this situation and was wondering how to approach the filmmaker about using the music I create for this film in other ways…he is paying (around $700.) but it’s going to be a ton of work e.g. scoring, some music supervision, audio correction, sound effects/Foley and overall engineering of the sound.

 

Much appreciated..Jay

[Redster]

Jay,

Email me directly and I can send you an annotated template for such a contract that you can modify for your particular situation.

Cheers!

Gael MacGregor

gaelmacgregor@yahoo.com

[Jay]

thanks for that Gael it’ll come in handy..Jay

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