This Article Originally Published March 1998

by Donald S. Passman

Remember when Teddy Kennedy hired someone to take an exam for him at Harvard? Well, the copyright law is one place where this is perfectly legal. It's done with works for hire (technically known as a work made for hire in the copyright law). A "work for hire" is a situation where you hire someone else to create for you, and if you observe the technical formalities, you actually become the author of the work insofar as the copyright law is concerned. And when I say "the author," I really mean THE author. It's as if the person you hired doesn't even exist (in the eyes of the copyright law), and indeed he or she needn't even be mentioned on the copyright registration form.

I suspect (but I really don't know, and would hate to disillusion myself by researching it) that "works for hire" developed to cover such things as fabric companies that printed copyrighted designs on their cloth, and wanted to be sure that the company (not the dork who actually designed the pattern) was the owner of the copyright. Seems reasonable enough.

Here's an example of how it works in show biz. Suppose you are Walt Disney Pictures and you hire someone to write the theme for Snow White. In this situation, Walt Disney Pictures (the corporation) becomes the author of the work, and the person hired to write it disappears. Does this mean that the writer won't get his or her name listed as the writer of the song (e.g. on sheet music, in the film, etc.)? Usually not; the real creator customarily gets credit. (But sometimes--for example, with jingles written for radio and television commercials--a creator doesn't.) Also, the amount of compensation paid to the real creator is normally not affected by this type of arrangement--most of the time they're paid exactly the same whether or not the work is "for hire".

A work for hire can be created under the copyright law in only one of two ways, which are a bit technical:

1. If the work is made by an employee within the scope of employment, it is a work for hire. An example of this is the fabric designer I mentioned before. The test of whether there is "employment" is not the one used for the income tax laws, or in fact for any other type laws. The cases treat it as situations where the employer is actually "directing or supervising" the creation of the work, in a very specific way.

The major case in this area is Community for Creative Non-Violence vs. Reid, 490 U.S. 730-1989, in which the Supreme Court held that a Vietnam memorial sculpture was not a "work for hire" because the people who paid to have the work created did not exercise control over the details of the work, did not supply the tools, had no on-going employment relationship, etc. Normally (although not always), a songwriter is given quite a bit of latitude in his or her creation. However, if a songwriter is given very specific instructions, and is supervised during the process, he or she might be considered an employee.

2. If not created by an employee within the scope of employment, a work can only be a work for hire if it is: a) commissioned (meaning created at the request of someone); b) created under a written agreement, and c) created for use in one of the following:

(a) A motion picture or other audiovisual work. This is the most common area where songs are treated as works for hire--musical scores, title songs written for films, etc. Remember, these songs do not have to be written by employees. There only needs to be a written agreement saying they are works for hire, and that they are commissioned for use in an audiovisual work. (Note: This category does not include phonograph records. Great job by the motion picture lobbyists; where were the record lobbyists?)

(b) A Collective Work. A collective work is a collection of individual works which, independently, are capable of copyright. Examples are an anthology of short stories; a magazine containing several copyrightable articles; an encyclopedia, etc.

(c) A Compilation. A compilation is a much broader term than collective work, although is basically the same thing. The term compilation means a work made by compiling a bunch of things, and thus it includes collective works (where the parts are separately copyrightable). However, it also includes works where the compiled materials are not, such as a reference index to the Bible.

(d) A Translation. A translation of a foreign language.

(e) A Supplementary Work. A supplementary work which is a work supplementing another work (clever definitions, these copyright guys, eh?). such as an arrangement of a song, an introduction to a book, etc.

Donald Passman is a Los Angeles-based music attorney with the firm of Gang, Tyre, Ramer & Brown. Specializing in music business law for over 20 years, his clients include major publishers, record companies, film companies, managers, producers, songwriters, and artists such as REM, Janet Jackson, Quincy Jones, Tina Turner and Green Day. On a regular basis, we will be excerpting from Mr. Passman's best-selling book, "All You Need To Know About The Music Business."

From "All You Need To Know About The Music Business" by Donald S. Passman. ©1991, 1994, 1997 by Donald S. Passman. Reprinted by permission of Simon & Schuster, Inc.

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