What if someone hires you to write a song? A work “made for hire” is a work prepared by an employee within the scope of his or her employment or by special commission. In the case of works “made for hire”, the employer, not the employee, will be presumed to be the author.
Whether a song is a work for hire also impacts copyright duration. Normally, the duration of copyright is the life of the author plus seventy years. What if the author is a corporation because the “real” songwriter was an employee for hire? A corporation can live forever. The answer is that the copyright life of a work for hire is different. Works for hire last the lesser of 95 years from the date of publication, or 120 years from the date of creation. Generally, publication means the distribution of copies to the public and creation means the writing down or recording of the song. Characterization of a work as “made for hire” also determines the owner’s renewal and termination rights.
Many songwriting contracts specify that all songs written pursuant to the contract are “works for hire” owned by the publisher as though the publisher were the composer. Because a beginning songwriter has little or no bargaining power, such language is seldom negotiable. Fortunately for songwriters, the courts, in determining whether a song is a work for hire, will look to more than just the language of your contract. The courts will look to the realities of your relationship with your “employer.”
The highest, most recent court case on the question is Community for Creative Non-Violence v. Reid. It is a unanimous decision handed down in 1989 and written by Justice Thurgood Marshall. There aren’t that many unanimous decisions anymore, and I presume even less of them are being written by the late Justice Marshall. Although the case deals with a sculpture, rather than a song, the reasoning applies to musical creations as well.
The Committee for Creative Non-Violence (CCNV) is an organization in Washington, D.C. dedicated to eliminating homelessness. In the fall of 1985 CCNV entered into an oral agreement with James Reid, a sculptor, to create a statue dramatizing the plight of the homeless for an upcoming Christmas pageant. The statue was a nativity scene, but instead of the traditional Mary, Joseph, and Jesus, the holy family appeared took the form of contemporary homeless people huddled on a steam grate. In this particular case, the Court ruled that the statue was not a work for hire and that the sculptor was the owner.
In arriving at its ruling, the Court concluded that the sculptor was not an employee working within the scope of his employment, (in which case the work would belong to the employer), but an independent contractor. The Court proceeded to list thirteen factors which should be considered in determining whether an independent contractor’s creation is a work for hire:
1) The hiring party’s right to control the manner and means by which the work is done;
2) The skill required;
3) The source of the instruments and tools used;
4) Where the work is performed;
5) The duration of the relationship between the parties;
6) Whether the hiring party has the right to assign additional projects to the hired party;
7) The extent of the hired party’s discretion over when and how long to work;
8) The method of payment;
9) The hired party’s role in hiring and paying assistants;
10) Whether the work is part of the normal business of the hiring party;
11) Whether the hiring party is in business;
12) The provision of employee benefits; and
13) The tax treatment of the hired party.
The Court made it clear that the extent of control of the hiring party over the details of the product is not the only issue. CCNV had come up with the original idea for the statue before contacting the sculptor, but the Court found that the other factors all came out in the sculptor’s favor. To the delight of lawyers, the Court cleared the way for years of case by case litigation by failing to specify how much weight should be given to the various factors and whether all the factors had to be weighed in every case.
Note that none of the factors addresses the language of the contract between the parties. Assuming you are a freelancer and not a jingle writer working as an employee of an advertising agency, you may have more rights to your “work for hire” than you think.