Continuing with last weeks subject matter, why is it when you hire musicians, producers, vocalists and others that the resulting Master tracks are not “Works Made For Hire”. If the recording were works for hire then you as the person who paid for their creation might be considered the employer and thus the “author” and owner of the sound recording copyrights.
The idea of work for hire is an exception to the general rule that the creator of a work is the “author” and thus is automatically the owner of the copyright. There are two kinds of works for hire. First, a work can be considered a work for hire if it is created by an employee within the scope of his or her regular employment. If you were to hire a vocalist to sing jingles for you full time and told the person when and where to work, then the jingle recordings might indeed be works for hire. But that is not the situation in most recording sessions that I know about. The artist or record label hires the musicians to come to the studio and record for that one album or for a certain number of songs on the album. Recording that specific album is not their full time job. They get paid for the project and not as a regular full time employee. They are independent contractors.
The second type of work for hire is the situation where one hires independent contractors which is the example given for most recording sessions. In that situation every one making a creative contribution to the recording will likely be a creator of it and thus an owner of copyright along with the other musicians, vocalists, etc. However, their work can be considered a work for hire only if two conditions are met: (1) the work must be intended to fit into one of nine categories listed in the copyright act AND (2) there must be a signed contract that states that the work when finished will be considered a work for hire. That is why I stated in last week's post that without the written agreement most songwriters and artists will not own the copyright in the sound recordings they just finished recording and paying for. Does an EP or an Album fit into one of the required nine categories? Arguably “yes” – in category number 1 below:
A contribution to a collective work
A part of a motion picture or other audiovisual work or sound recording
A translation
A supplementary work
A compilation
An instructional text
A test
The answer material for a test
An atlas
The lesson: when you get ready to go to the studio be sure you have anyone making a creative contribution to the sessions sign a work-for-hire agreement that addresses all the requirements of the Copyright Act.