US copyright law as it applies to music

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US copyright law as it applies to music

US copyright law as it applies to music
US copyright law as it applies to music

Terminology

Artist. In this document, we use artist as a generic word to describe recording artists, songwriters, book authors, and other creators of copyrighted material.

How long does a copyright last?

For works created on or after January 1st, 1978, copyright lasts for the author's life plus 70 years.

For anonymous works, pseudonymous works, or works made for hire, the copyright lasts until the earlier of either of these events:

95 years from the year of the first publication

120 years from the work's creation

However,

Do copyrights have to be renewed?

Works created on or after January 1, 1978 do not need their copyright registration to be renewed.

The two copyrights for music

Sound recording or "master" copyrights

Musical composition copyrights

Rights held by copyright owners

To reproduce the work

To distribute copies of the work

To publicly perform works

To make derivative works

To perform copyrighted sound recordings by means of a digital audio transmission

To display the work

Fair Use

Derivative works

Only the owner of a copyright has the right to prepare or authorize an adaptation of the copyrighted work.

A derivative work's own copyright only applies to newly-added material. The derivative work's copyright cannot be used to copyright public-domain material or to extend the copyright duration for an existing work.

The US Copyright Office

lists a few examples⁠

of derivative works:

A motion picture based on a play or novel

A translation of an novel written in English into another language

A revision of a previously published book

A sculpture based on a drawing

A drawing based on a photograph

A lithograph based on a painting

A drama about John Doe based on the letters and journal entries of John Doe

A musical arrangement of a preexisting musical work

A new version of an existing computer program

An adaptation of a dramatic work

A revision of a website

Multiple works

The US Copyright office normally requires each work to be submitted in a separate copyright application. But there are three exceptions to this rule:

Collective works

Group registrations

Works packaged as a single unit

Compilations and collective works

Compilations can be copyrighted when original authorship was involved in creating the compilation.

If assembling the compilation was a purely mechanical process, then it is not copyrightable.

Work for hire

US copyright law usually specifies that the person

Usually in US copyright law, the person that created a work is legally recognized as its author.

Works made for hire by employees

When an employee creates a "work made for hire" for their employer, the employer is recognized as the legal author.

However, the legal definition of an employee-employer relationship in this context is not precise. The US Copyright Office

gives the following examples⁠

of some factors a US court would consider when examining an employee-employer relationship:

Control by the employer over the work. For example, the employer determines how the work is done, has the work done at the employer’s location, and provides equipment or other means to create the work.

Control by employer over the employee. For example, the employer controls the employee’s schedule in creating the work, has the right to have the employee perform other assignments, determines the method of payment, or has the right to hire the employee’s assistants.

Status and conduct of employer. For example, the employer is in business to produce such works, provides the employee with benefits, or withholds tax from the employee’s payment.

Works made for hire by non-employees

A work made by an independent contractor for a client can only be considered a work made for hire if both of these conditions are true:

The contractor and client have both signed a written agreement specifying that the work is a work made for hire.

The work produced by the contractor is

one of these types⁠

of "specially ordered or commissioned for use" (SOCFU) categories of works made for hire:

a contribution to a collective work

a part of a motion picture or other audiovisual work

a translation

a supplementary work

a compilation

an instructional text

a test

answer material for a test

an atlas

Sound recordings are not one of the SOCFU categories of works

When a record label signs an artist, the artist is typically an independent contractor instead of an employee. Therefore, the sound recordings that artists produce for their record label are not works made for hire because "sound recordings" are not one of the SOCFU types of works.

Despite the letter of the law, record labels have been doing everything they can to treat sound recordings as works made for hire:

Work-for-hire clauses. Since the 1970s, record contracts have included clauses implying that both the record label and the artist agree to treat the artist's sound recordings as works made for hire.

Registering sound recording copyrights in the label's name. Record labels would also file copyright registrations in the label's name instead of the artist's name. When the US Copyright Office receives copyright registrations, they do not inquire whether the registrations actually met the work-for-hire criteria.

Lobbying to change the law. In 1999,

the RIAA allegedly convinced a Congressional staffer⁠

to add sound recordings to the SOCFU list via a "technical amendment" to a telecommunications bill. After the bill became law, artists collectively screamed at Congress and succeeded in getting the amendment reverted.

Despite everything the labels have tried, sound recordings made by independent contractor artists are likely vulnerable to copyright recapture that takes effect 35 years after the artist grants the copyright.

Ways we could defeat copyright recapture for sound recordings

Hire the artist as an employee. Our deal with the artist would have to match the "agency law" definition of an employee. Here are some examples of how we would need to structure the contract:

Hire the artist as a W-2 employee.

Pay a salary to the artist and payroll taxes to the government.

Give the artist company-owned equipment to make music with.

Provide the artist with a significant amount of supervisory direction on how to make music.

Release derivative works. When an artist grants a copyright, the grantee has the right to create derivative works. When the artist wants to recapture the original copyright, they cannot recapture the derivative work, but they have the right to prevent new derivative works from being created.

Use the artist's sound recordings in a collective work.

Some record labels argue that a typical music album is a collective work of many sound recordings with contributions made by multiple people, making the album a work-made-for-hire because it belongs in SOCFU category #1. It is unclear whether this legal argument would persuade a judge.

Use the artist's sound recordings specifically as a film soundtrack. Our goal would be to get the artist's sound recordings to count as SOCFU category #2.

Copyright recapture

What is copyright recapture?

Copyright recapture is the inalienable right provided to artists to "terminate" a copyright grant 35 years after the grant date.

Why does copyright recapture exist?

Many artists give up the copyrights to their work before the true value of those copyrights becomes apparent. For example, a musician may assign the copyright for her upcoming album to a record label, but

For example, a musician might assign the copyright to their next album before they even begin working on it. If the album becomes wildly popular after it is released, it is too late for the musician to reconsider or renegotiate the sale of her copyright.

Congress wanted to give these artists (or their estates) a second chance at profiting from their work, which is why Congress included copyright recapture in the 1976 Copyright Act.

Exceptions to copyright recapture

Works made for hire

The typical workflow for copyright recapture is as follows:

When an artist creates a work, the copyright belongs to them.

Then, the artist can grant their copyright to another entity.

Barring some exceptions, the artist can recapture the copyright starting from 35 years later.

But when an artist creates a work made for hire for an employer, the copyright belongs to the employer from the very beginning. The artist never has the right to capture the copyright for a work made for hire.

However, this only works if all of the rules from the "work for hire" section are being followed.

How to prevent copyright recapture for sound recordings

Sound recordings are not one of the nine SOCFU work-for-hire categories. This means that if an artist grants us the copyright to sound recordings, then

Hire the artist as an employee

Remix the artist's songs before the recapture deadline

Use the artist's sound recordings to build a collective work

Use the artist's sound recordings specifically as a film soundtrack

How does copyright recapture change negotiations?

An artist's right to terminate a copyright grant is inalienable. Artists cannot sign away their right to recapture their copyrights.

However, artists don't have to actually recapture their copyrights to benefit from the right of recapture. Artists' right of recapture gives them the leverage to renegotiate their copyright grant with their original grantees.

When formulating the 1976 Copyright Act, Congress recognized that many artists give up the copyrights to their work before the copyrights' true value is apparent. To give these artists (or their estates) a second chance at profiting from their work, the 1976 Copyright Act grants artists an inalienable right to "terminate" a copyright grant 35 years after the grant was made.

(The word "inalienable" means that artists cannot sign away their rights to copyright recapture.)

The 1976 Copyright Act does not guarantee artists the termination right for works-made-for-hire. Because of this, many record label and publishing contracts specify that the artists' creations are works-made-for-hire.

In an effort to prevent artists from recapturing their copyrights, record labels and music publishers include "work-for-hire" clauses in their contracts with artists. However, such clauses may not stand up in court if the artist created the work with relatively little influence from the party that hired them.

Artists can use the "weakness" of work-for-hire clauses when negotiating against their label or publisher. Artists may be able to negotiate for ownership of their copyrights in exchange for

giving something⁠

to their label or publisher—such as exclusive distribution or administrative rights.

When to terminate

Artists must provide advance notice of termination. The earliest date that notification can be served is 25 years after the artist granted the use of the copyright to somebody else. The latest date that notification can be served is

Notice must be served between 25 and 38 years after the date that the artist originally granted copyright to somebody else.