The creative process that is so closely tied to the success of the entertainment industry often raises questions regarding ownership of creative works. While copyrights usually rest with the creator of a work, certain agreements can be made that transfer these rights to another party.

Generally, copyrights rest with the author or authors who originally create a work. However, the Copyright Act of 1976 contains a major exception, the “Work Made for Hire” Doctrine, which challenges the fundamental principle that copyright ownership lies with the individual who creates the work. In the case of a “Work Made for Hire,” the party for whom the work was completed is considered the author and thus holds the copyrights to the work created rather than the party who actually authored the work.

A Work Made for Hire is not, however, any work that you pay someone to create for you. In addition, it is not any work that you and a developer simply agree is a Work Made for Hire. Rather, “Work Made for Hire” is a specifically defined term in Copyright Law and applies only when certain conditions are met.

Disputes over what constitutes a “Work Made for Hire” often arise over two main issues: the distinction between an employee and a non-employee or independent contractor and whether or not the work in question qualifies as one or more of the nine categories outlined in the Copyright Act.

Section 101 of the Copyright Act defines a “work made for hire” as either:

1.  a work prepared by an employee within the scope of his or her employment; or

2.  a work by a freelancer (independent contractor) which is specially ordered or commissioned for use as a translation, as a part of a motion picture or other audiovisual work, as a contribution to a collective work, as an atlas, as a compilation, as an instructional text, as a test, as answer material for a test, or as a supplementary work such as a preface to a book, a forward or a musical arrangement, if the parties expressly agree in a written instrument signed by them that the work shall be considered a work made for hire.

If the condition of category one is met, copyright ownership belongs to the employer unless an employment contract specifies that the creation of copyrightable material is not within the scope of employment. If the creation of the work falls outside the scope of employment then the employee, and not the employer, would have copyright ownership of the work.

If the conditions in category two are met, then the party hiring the freelancer would own the copyrights. If, however, these requirements are not strictly followed and the work falls outside the nine categories enumerated by the Copyright Act or a written agreement does not exist, then the freelancer would retain copyright ownership in the work.

Los Angeles intellectual property attorney, Anthony Spotora, commented, “It is the lack of a written instrument specifying the intended “Work-Made-for-Hire” relationship with independent contractors that commonly creates “Work-Made-for-Hire” copyright ownership issues. All too often, the intended owner seeks to argue that a “Work-Made-for-Hire” relationship was agreed upon, although it was stated only verbally. Subsequently, authorship of the work at issue ultimately winds up with its creator, rather that the intended owner. The second biggest misperception in freelance arrangements is that a written agreement specifying that a work is intended to be created on a “Work-Made-for-Hire” basis makes it so when, in fact, that is only the case if the work falls into one of the nine exceptions listed in Section 101 of the U.S. Copyright Act.”

Anthony Spotora is a Los Angeles entertainment lawyer and Los Angeles business attorney. To learn more, visit Spotoralaw.com.

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Music publishing is a complex process that requires extensive knowledge of proper business practices and copyright law. A music publisher can help songwriters reap the benefits of their creativity.

While publishing their own music is a viable option for artists, the legal issues involved can be messy and complex. In order to avoid dealing with these issues, many artists turn to music publishers for help. Music publishers perform a variety of different functions for songwriters, as they have the expertise required to manage licenses and collect royalties.

One of the most important functions of a music publisher is to help an artist collect royalties. Royalties fall into two main categories: mechanical royalties and public performance royalties. Mechanical royalties are those fees paid to the copyright owner, usually the songwriter and the publisher, for the right to reproduce the song on some type of recording. Under the U.S. Copyright Act, once a song has been commercially released, any other artist can record and release their own version of the song, provided that they pay the copyright owner the minimum statutory royalty rate for every single copy of their version that is pressed or distributed.  This rate increases periodically and is calculated differently for songs that are over five minutes in length.

Public performance royalties are collected when a song gets played in public at a concert, in a nightclub, on television or the radio, etc. The copyright owner of the work is entitled to payment for each performance of the song. However, in order to collect this money, the songwriter will need to register as a member of a performance rights society which will collect royalties from those playing the songwriter’s music.

Not only do music publishers handle the collection of royalties, they also help songwriters manage the licensing of their songs to record companies and other interested parties. There are two main types of licenses that generate income for songwriters: synchronization licenses and print licenses. Any time the performance of a song is accompanied by a visual, a synchronization license is required. These licenses are issued when a song is used in a movie, television show, video game, or other type of visual medium, and the fee varies based on the usage and importance of the song.

A final way of earning income is through print licenses. While sheet music is not as popular as it once was, many songs are still available in print form. A music publisher will issue print licenses and collect income from the sheet music company, and the songwriter will receive a small royalty derived from the sale of his or her song.

Navigating these four possible sources of income can be difficult for an artist to do alone, and the knowledge a music publisher possesses in these areas can be a great benefit to artists. Entertainment and intellectual property lawyer Anthony Spotora commented, “Whereas music publishing seems to exist somewhere in the shadows of the music industry, good music publishers can be worth their weight in gold to songwriters.  In fact, hidden behind many of the ‘majors’ commonly lies a publishing division which often generates more annual revenue than does its label cohort.  And yet, even those who have been cast deep into the music industry itself often do not fully realize the role that a music publisher can play in the life of a songwriter and, more importantly, in the life of his or her music.  A good music publisher satisfies 5 primary duties: exploitation, administration, collection, protection and acquisition.  When they do their job well, many songwriters can finally begin to appreciate what it means to receive ‘pennies from heaven.’ ”

Music publishers can be a great asset to artists, but it is important that songwriters know their rights before entering into an agreement.  As a full-services business law firm Spotora and Associates provides exceptional guidance to songwriters considering entering into a publishing agreement, and has specialized in advising entertainment artists of their legal rights in the areas of intellectual property and entertainment law for over 15 years.

For more information, contact us.

Music publishing offers artists a way to gain recognition and compensation for their work. Knowing your rights can make it easier to enter into a publishing agreement which can then help secure that deserved credit and desired remuneration.

In the music industry, protecting your rights can be a tricky process; however, doing so is essential for artists to achieve success. Music publishing rights include the rights to market, value and distribute your original, creative music. Essentially, music publishing consists of finding different uses for a song, such as including it in film, television or video games, and collecting money for these uses in the form of a licensing fee.

Songwriters typically own copyrights in the music and lyrics that make up their songs and earn money through license fees or royalties from their commercial use. If someone wishes to use a songwriter’s material, then he or she must obtain permission from the copyright owner in the form of a license; based on the type of agreement entered into, that copyright owner may no longer be the songwriter or artist.

Many songwriters agree to give up a portion of their publishing rights by entering into a contract with a music publisher. In giving up these rights, the musician usually gains publishing services and cash advances. The publishing company then proceeds to find uses for the songwriter’s music and takes on an administrative role, protecting copyright, licensing songs to record companies, and collecting royalties on behalf of the songwriter.

Agreements entered into by the publisher and the artist can take several different forms. A co-publishing agreement is when the songwriter and the songwriter’s publisher jointly own the copyrights in the song. Alternatively, in a songwriter agreement, the songwriter agrees to transfer all of the copyrights to the publisher. Finally, administration agreements are those in which the songwriter retains the copyrights in his or her song, and the publisher administers the copyrights for the songwriter for a specified amount of time, while receiving an administration fee in return for its services.

If a songwriter is offered a publishing contract, he or she should consult with an entertainment lawyer to help review the proposed agreement, explain its terms, and work with the publisher to achieve the best possible deal for the artist.

Whether you are trying to obtain music or get it licensed for an artist, you should seek the advice of an experienced music publishing contract attorney who will make sure the contracts are proper and both parties follow the relevant laws.
 

The protection of intellectual property is a basic tenet in the U.S. legal system. The courts have long recognized that the creators of material eligible for copyright protection invest a great deal of time, effort and money to generate these ideas of the mind. They have a right to protect the commercial value of these ideas from theft or abuse by others.

A copyright can apply to artistic works, literary works, inventions, names, slogans, images, symbols, and designs that are, or are intended to be, used in commerce.

Intellectual property works generate public discourse by their very nature. People like to talk about newspaper articles, books, magazines, directories, movies, video games, and other commercial products that are covered by copyright laws.  The question then becomes, how much of the original work can be used by others without interfering with the legal rights of the copyright holder?

The “fair use” doctrine, contained in Section 107 of the copyright law, answers this question by identifying four factors that can be used in evaluating if a use is considered to be fair:

1.       Whether the usage is for commercial or educational purposes
2.       The nature of the original copyrighted work
3.       The portion of copyrighted material being referenced in relation to the whole
4.       The impact of the use on the value or market potential of the copyrighted material

These fair use guidelines can be difficult to interpret, which is why it is important to speak to a trained copyright attorney about your intended usage. Citing the original work itself is not always sufficient to qualify for protection under fair use laws, and your intellectual property attorney can provide guidance in compliance matters.

Gaining permission from the copyright owner to reference their work is the best approach to protect yourself against charges of copyright violation.