Information Technology Reference
In-Depth Information
Does it matter that artists typically get an advance for making an album, but then they
end up having to pay all the costs of producing the album, and that has to come out of
their future royalties?
That's very relevant because it suggests that they're not employees, they're outside contractors. But
because the statute allows in some cases for outside contractors to create works made for hire, I don't
think the fact that the artists have to pick up these expenses necessarily indicates that it's a not a work
for hire. It more likely depends on whether you can shoehorn the particular recording into one of these
commissioned-work categories.
As I mentioned, the cases are somewhat fact based. That means the label may win in one case and
the artist in another because the facts are different. For example, there are sound recordings that were
created as a contribution to a motion picture or other audiovisual work. That's one of the categories.
And if that's the case, then it will be a work for hire, assuming there was a signed agreement. But most
sound recordings were not created that way. So even if one case comes out one way, it doesn't mean
they all will.
Are the stakes in this so high that the losing party would want to keep appealing all the
way to the US Supreme Court?
Probably. I would be surprised if this would get resolved before you get to that level. If the record
labels are not successful in claiming that these are works made for hire, it definitely will diminish an
important income stream. So I don't think they will just accept a negative decision. This is true of the
artists as well.
