Thanks to the Copyright Act of 1976 the recording industry has yet another battle to worry about . . . copyright termination. What do I mean by termination? Well, the Copyright Act includes sections 203 and 304, which are often called the “termination provisions.” These provisions allow authors to recapture their copyrights after a certain number of years. Specifically, section 203- which is the section I’ll be referring to- allows authors who granted a transfer or license of copyright on or after January 1, 1978 to recapture the copyright after 35 years. This means that January 1, 2013 marks the first day that terminations can go into effect for sound recordings- that is, if the artist(s) successfully satisfies the notice requirements (which are essentially a number of procedural hurdles that an artist must satisfy before he/she can recapture copyrights). Another major part of the termination provision- if not the most important part- is the work made for hire exception which essentially states if sound recordings fall within the work made for hire provision, record labels are the legal authors of the recordings and artists can say goodbye to their right to recapture copyrights. Do you see why this is an issue? If artists are able to recapture their sound recordings (often called “masters”), the recording industry will be at a huge financial loss that will greatly affect its already “rocky” stability. Under these circumstances, the threshold question that creates the battle between artists and the recording industry is: are sound recordings works made for hire?

A Little History

Before answering the question, it is important to consider the history regarding sound recordings and the work made for hire doctrine. In 1999, Congress included sound recordings as a tenth category to the work made for hire provision. (See Intellectual Property and Communications Omnibus Reform Act). However, soon after, pro-artists groups caused enough ruckus to make Congress rethink its decision, which lead to the repeal of the Act via the Work Made For Hire and Copyright Corrections Act of 2000. In the 2000 repeal, Congress, when removing sound recordings as a distinct category, said the work made for hire doctrine should return to the state it was in before the 1999 Act. The issue is with that is NO ONE KNOWS WHAT THAT MEANS! Whether sound recordings are works made for hire was ambiguous before the 1999 Act. Now, after the repeal, the issue is still ambiguous. I should take the opportunity to note that Congress did not include this “return to its original meaning” language unintentionally. It pretty much punted and threw the responsibility on the courts to decide the question.

What Does Alesha Think?

Now, when considering the history of the issue surrounding sounding recordings being works made for hire, one must keep in mind one critical thing: either sound recordings were always works made for hire or they were never works made for hire. Now, disregarding Congress’ actions and looking at the situation for what it is, it is my opinion that sound recordings are works made for hire because they fall within an already existing category of the provision- collective works. Think about it . . . the Copyright Office defines a collective work as “a work, such as a periodical issue, anthology, or encyclopedia, in which a number of contributions, constituting separate and independent works in themselves, are assembled into a collective whole.” The idea is that many sound recordings, individually, are collective works because when artists, musicians, and background singers all put in their “piece” of the final recording, they all contribute separate and independent works (i.e. the underlying musical composition and the background music) that the labels’ engineers and producers edit and assemble into a collective whole- the sound recording. Likewise, many albums fall within the meaning of collective works as well. Simply put- each sound recording is a separate and independent work that is assembled into a collective whole- the album. It is often the record labels that select, arrange, and assemble the masters for the final album.

We Shall See . . .

That is simply my take on the issue of whether sound recordings are works made for hire. Obviously, as of now, there is no definite answer until the courts decide, and even then there still may not be a definite answer. In any event, over the next few years, we will see a lot of litigation about who owns sound recordings in any given case. I’ve given my opinion on the outcome of these cases, but what do you think? Are sound recordings works made for hire? Why or why not?