Information Technology Reference
In-Depth Information
terminating. So if you didn't serve the notice in 2011, you can't terminate in 2013. But you have until
January 1, 2018, to actually terminate the grant.
It's important to note that even if you terminate the grant to a copyright, you can't cut off the rights
to derivative works that have already been made. Suppose the record company licensed your recording
to be used in some sort of combination recording, where one track is run over the other to create a
new recording. If that was done with authorization, you can't cut off the rights to that. It could still be
marketed, and you would continue to be paid for it. But you can prevent new derivative works from
being made from your recording.
Is there any reason why sound-recording artists wouldn't want to reclaim copyright
ownership of their work?
Some recording artists own the label. If they own their own label, then they wouldn't have any partic-
ular interest in termination. If they're very happy with their relationship with their label, maybe they
wouldn't want to terminate. A lot of people wouldn't want to be the test case, so they might kind of
drag their heels until they see what's happening with other people.
What's the problem with being the test case?
Litigation is very expensive. You could spend as much in litigation as you could ever hope to gain on
your recordings. So the people who are the test cases will likely be the artists who are making a fair
amount of money from their older recordings and are willing to spend money and time and effort to
get out from under their record company.
Which side do you think has the stronger argument?
This is a very complicated issue. It all revolves around whether or not these works are works made for
hire, because you can terminate the copyright grant if the work was created in your individual capacity,
but you can't terminate if it is a work made for hire.
There are two ways a work can be a work made for hire. One is if it was created by an employee in
the course of his or her employment. That usually is not the case with sound recordings. For the most
part, the artists are not employees of the label. But the other way it can be a work made for hire is if it's
a specially commissioned work. For a commissioned work to be a work made for hire, there has to be
an agreement signed by both parties that the work will be work made for hire, and the work has to fall
within one of nine specified categories of works. If it doesn't fit into one of these categories, it doesn't
matter what you said in your agreement; it's not a work made for hire.
Most of these categories aren't ones that sound recordings would likely fall into. But there are three
categories that sound recordings might fit into: a contribution to a collective work, part of a motion
picture or other audiovisual work, or a compilation. Most of the time the label's money is going to
be on a contribution to a collective work. They'll say, “We have a signed agreement, and we hired you
recording artists to create your sound recording as part of a collective work—specifically, an album.
Therefore, it is a work made for hire, and you are not entitled under the law to terminate it.”
It's not clear to me whether the labels will succeed. I think these cases are going to be very fact based. So
to answer your question, I think it's going to depend upon the circumstances under which the sound
recording was created. If the recording was created and marketed as a single, I don't think you have a
contribution to a collective work. Also, some courts have held that a work-made-for-hire agreement
must be signed before the song is recorded. So if the case were to go to one of those courts, then the
success of the artist could depend on when the contract was signed. And there are some other more
complicated arguments that might be made with regard to whether a particular recording is a work
made for hire. But everybody is going to be watching those first cases very carefully.
