Watch Out for Work-for-Hire
A work-for-hire agreement essentially states that a person or company who commissions a work from an author retains actual ownership and is, in fact, considered the legal author of the work.
By Kevin Zimmerman
One of the most important issues for songwriters - both new and established - is the accurate accounting and prompt payment of royalties generated from the use of their works. And while there are hundreds of pitfalls in this area, one which songwriters should be very aware of is the work-for-hire.
A work-for-hire (or “work made for hire”) agreement essentially states that a person or company who commissions a work from an author retains actual ownership and is, in fact, considered the legal author of the work. The actual creator of the work may or may not be publicly credited for the work, and has no rights to payment beyond what was promised in the initial work-for-hire agreement.
Such an arrangement may sound unethical at best and illegal at worst, but the fact remains that under U.S. Copyright Law (and copyright laws in many other nations), such practices are allowed, provided that the terms are spelled out in a written agreement, either for a regular employee of a company or for someone hired especially for a specific work-for-hire project.
“Under those terms, whoever commissioned the work is the copyright owner from the get-go,” says Gary F. Roth, Assistant Vice President, Legal & Business Affairs at BMI and a Songwriter101.com faculty member. “Normally, when you’re working on a work-for-hire basis, you give up your publishing rights.”
The situation is likened by experts to that experienced at computer programming giants, pointing to Microsoft or IBM, where many programmers may have worked to develop a particular program or operating system, but Microsoft or IBM maintain property rights. Similarly, newspapers and magazines, while routinely crediting the authors of articles, retain the ownership of the article itself.
In the songwriting world, normally a work-for-hire situation will arise when a composer is creating music for other media, particularly with television commercials. A company that’s hired someone to create a jingle for their product will, for obvious reasons, mandate that the resulting composition remains the company’s property for future applications.
A work-for-hire situation may also arise for a musician who’s brought in to help an act record a song; in that case, the musician is paid on a work-for-hire basis a onetime fee and is not entitled to future earnings from royalties generated by the recording. Should the outside musician be an integral part of the songwriting, not just through jamming but via contributing identifiable hooks, lyrics, and so on, he should try to secure co-writing credit at the earliest possible stage. If the act he’s working with doesn’t agree, he would probably be wise to divorce himself from further work.
Roth emphasizes that there are also what he calls “quasi-work-for-hire agreements” floating around, which may appear to be work-for-hire contracts but are not. As with most everything, having one’s own attorney at hand can be vitally important.
Obviously work-for-hire can be a grey area. Some songwriters, unsure of what they’ve signed, maintain that their publishers owe them money for their work, and need to be hounded constantly for payment.
“There are all kinds of publishers, from the majors to family-owned and even individually-owned companies,” Roth explains. “The vast majority are conscientious about taking on the responsibilities that go with the territory. But a number of people at these smaller companies are not business people at heart.”
The general lesson? Make sure you understand everything contained in a document - and who you’re dealing with - before you sign it.
Posted Nov 22, 2006
Member Comments
ZIMM:
Concise analysis of another corporate ploy to rest more money out of artists & songwriters.
It always pays to have an entertainment lawyer read through ANY contract before you initial and sign what could be SERIOU$ money away.
The attorney fee may be MORE than worth the investment to protect yourself from losing those hard earned royalties & residuals.
Barry Manilow was a ‘jingle’ writer “You deserve a break today, at MacD’s.” I wonder how lucrative it was for him.
“Put it in writing”... I worked for a studio with the understanding that I was to be paid for all graphics after a CD release. (I understood it was work-for-hire) However, the narrator of a great project didn’t, and thought it was a partnership with creative input to be shared. Since then her actions have put any potential income on hold for all three of us. She’s in her 80s and a darling of the community, well respected and we’ve been told by her law firm that we cannot release the project…despite the producer and my understanding that the project was not a partnership. I repeat ... put it in writing.
In order to release the project, we have to remove the narrator, redo all the beds, and find a new person to narrate the spoken word project.
Always remember, any ‘partnership’ or collaboration of any kind with another person, or with a ‘corpora ficta,’ the fictitious being given ‘life’ by force of law as a company, is a potential adversarial relationship. Marriage is the clearest example. Both parties make beautiful vows but can then end up in an agonizing battle in the divorce. Do you think any other ‘partner’ is going to be more reasonable and cooperative if a dispute arises? Written contracts can be precise and let everyone know up front what their ‘consideration’ is, what they are committing to offer, and what ‘consideration’ the other party offers in return. A judge and/or jury can be shown that clarity and render a judgment. ‘He said/she said’ makes a great CD title (Rick Ferrell & Jennifer Hicks) but makes a poor defense or offense in a court of law.
THE MUSIC BUSINESS BASED ON THE AFOREMENTIONED CAN BE VERY COMPLICATED AS WELL AS FRUSTRATED.
HOWEVER, I DO BELIEVE IT IS ESSENTIALLY IMPORTANT TO WRITE DOWN EVERY DEATAIL IN A CONTARCT BE SPECIFIC AND BE ABUNDANTLY CLEAR. IN ADDITION, THE MUSIC BUSINESS IN ITS EARLY DAYS SEEMS TO HAVE HAD A LOT OF INJUSTICES IN TERMS OF ARTIST, SONGWRITERS, MUSICIANS BEING EXPLOITED GROSSLY DISRESPECTED AND TAKEN FOR GRANTED. THEREFORE, IT BEHOOVES ONE NOT ONLY TO KNOW THE MUSIC BUSINESS BUT TO “KNOW THE BUSINESS OF MUSIC AS IT’S BEEN SAID BY ONE MY AQUAINTANCES” MAKE SURE ALL PARTIES INVOLVED UNDERSTANDS WHAT GOING ON AND WHAT WILL BE GIVEN AND WHAT WILL NOT BE GIVEN AND BEFORE SIGNING MAKE SURE THAT EVERYTHING IS DOCUMENTED ON THE CONTRACT.
An “out” clause, or more than one, seems in order too. If one party for any reason can not or will not continue with a project on the contract-specified schedule, the other parties have the right to terminate the contract with that party to enable them to pursue other avenues to go forward with the project. The contribution of the party unable or unwilling to meet their responsibilities to keep the project on the contracted schedule will either not be used, or a price for its use will be negotiated, at the discretion of the other party(ies). The parties agree that nothing will inhibit the forward progress of the project as scheduled, even if it means they are dropped from participation.
Wow! That’s not bad. I shoulda been a lawyer. And anybody entering into a contract, verbal or written, should have a real lawyer to confirm the contract truly commits to what the parties want and agree to, excludes what they want to exclude, and gives them outs if anything suddenly starts tying up money, or time, and the parties’ ability to move forward with the business at hand.
MAKES A LOT OF PRACTICAL LEGAL SENSE.
IT IS ALSO RATHER INSIGHTFUL GOT TO BE ABLE TO SEE AHEAD SO YOU DON’T WANT ANYTHING TO HINDER YOUR FORWARD MOTION AND PROGRESS. iN ADDITION YOU MAY START A PROJECT TOGETHER BUT MAY COMPLETE IT ALONE.
THANKS!!!!!!!!!!!!!
ONE LOVE
Please elaberate a bit more on the, “Quasi-Work-For Hire” agreements. This info is very helpful. Thanks Jehnean!
This is a work for hire clause I use . If you started a band and have lost band members you will know why. It’s also much longer and spells it out.
Band members understand upon leaving the band ether by way of their own free will or by way of termination, the departing member forfeits any and all rights in and including but not limited to: novelty sales, concert monies etc. any and all songs co-written with the band. Members agree that all songs written with or in connection with the band are the sole property of the band and are a work for hire including the title, words and music, and all copyrights thereof, including the grand rights (which include among other rights the right to include the said composition in a dramatic-musical work or review), and the exclusive right to secure copyrights therein throughout the entire world.
The more knowledge an artist accrues BEFORE the
negotiation process begins as the contract is being hashed out, the better the result.
There is a LOT of invaluable information here and it
needs to be part of a new BOOK that Songwriter 101
needs to publish to keep the legal eagles from wrecking our due share of the profits.
could you register a song with BMI if it’s only lyric and melody or it has to be fully record
Glenn:
Register & Copyright should always revolve around a written musical score and/or a recording with lyrics/melody to protect it fully.
Unless there are some legal eagles out there who have better insight & experience on this.
Glenn
Under the United States copyright act of 1978 your work is copyrighted on the date and time of completion that the words and melody are set together. This has never been revised in our copyright act that I know of. However unless it is filed with the library of congress you will lose cretin rights to compensation for infringement. Yes you can register it with BMI please be aware registering your song with BMI does not protect or copyright your work, you should file it with the library of congress (the copyright office) for protection. I hope this helps!
The authorship on the copyright application reads words and music by a certain name.The courtesy with a collaborative friend relations played an instrument and on music paper scored the song for registration. The “employer for hire of J.Davis “on the application which is the collaborative friend has since then rewritten the song and has made attempts in correspondence with her.Is the obligated courtesy “work for hire” prevalent here?
