Manatt Partner Explains Works for Hire Under Copyright Act of 1976
" 'Works for Hire' A Key Issue As Music Stars Begin Terminating Copyright Transfers"
Intellectual Property Watch
March 5, 2013 – Intellectual Property Watch spoke to Manatt's Eric Custer, a partner in the firm's Entertainment Practice, on how a sound recording can be qualified as a work for hire.
As reported by Intellectual Property Watch, Section 203 of the Copyright Act of 1976 allows authors who transferred or licensed their copyrighted works on or after January 1, 1978, to terminate their rights assignments beginning this year. However, the provision does not apply to works made for hire.
Custer told the publication that the Act defines a work for hire as one prepared by an employee in the scope of his or her job or one specially ordered or commissioned for use in, say, a movie. "This is an important distinction as works for hire cannot be terminated." While most recording contracts state that recordings made thereunder are works for hire, under the law you can't make something a work for hire just by designating it as such, he said.
For post-1977 copyrights, qualifying as a work for hire means falling within one of two tests under the law, application of which to recording artists and sound recording copyrights is uncertain, Custer said. Given that uncertainty, and that the first sound recording copyrights weren't even theoretically capable of termination until this year (35 years after 1978), "these issues have not been fleshed out as yet."