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Can a pre-existing song recording be deemed a Work Made For Hire just because a clause in a record contract says so?
Im Entertainment Lawyer Gordon Firemark, and this is Asked and Answered, where I respond to your questions, so you can move your career and business to the next level.
So Tom writes:
Ive been looking at some record label contracts for musicians who submit completed tracks to these record labels, in which the artists submit the masters to the label, assign all their rights in perpetuity, and include a statement that the masters are works made for hire. If the masters were actually produced prior to the agreement being signed, is it still possible to call them works for hire?
Well, Tom, the short answer is Yes. Because the artist is signing a contract. Saying something is so, essentially makes it so. Its creating a kind of legal fiction, I suppose, but the practical effect is that this contact is a manifestation of the INTENTION of the parties And that is saying that the Master will belong to the Record Label forever.
When a copyright work is a Work Made for Hire, the effect is just that. The Employer, rather than the person who created the work is considered its AUTHOR, and under copyright law, the AUTHOR is the owner of a work until its sold, transferred or licensed.
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A work is a Work Made For Hire either when its created by an employee within the course and scope of an employment relationship, you know with taxes withheld, benefits, etc OR, for certain kinds of works, if created by an independent contractor where theres a written contract specifying that its been made for hire.
So why not just transfer the copyright in a pre-existing work?
Well, copyright law has an interesting little wrinkle. You see TRANSFERS of copyright interests by authors can be terminated between the 35th and 40th year after the transfer occurs. And this leads to lots of uncertainty and concern from the big entertainment companies, who build their businesses on ownership of copyrights.
But when the company is the author because it is a work made for hire situation, theres no termination right. And that is why these contracts, even for pre-existing masters, include the work for hire language.
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