This will be the first of several articles in which I discuss and — hopefully — answer questions posed by our readers. Remember, you can e-mail your questions to Allegro editor Mikael Elsila at firstname.lastname@example.org and he will pass them along to me.
Local 802 member Will Pitts has submitted the following question:
“I’m a film composer and member of Local 802. If I sign a contract stating that my score is a ‘work for hire,’ do I lose all my writing and publishing royalties? What if the producer owns the copyright — can I have a clause that allows me to keep some of the royalties?”
WHAT IS WORK FOR HIRE?
The concept of “work for hire” was created by virtue of the Copyright Act (17 U.S.C., section 101). This section of the act states that “in the case of a work made for hire, the employer or other person for whom the work was prepared is considered the author.”
This, in essence, means that the actual creator is not considered the work’s “author” (owner) and is not entitled to any of the benefits of copyright protection.
If your film score is truly a work for hire, you would lose your entitlement to royalty payments, which only go to the work’s actual owner.
Artistic works may be considered works for hire in two contexts.
The first is if the work was created by an employee during the course of his or her employment.
Often, employers require their employees to sign contracts by which they relinquish their right to any artistic product they create during the course of their employment. For example, Disney animators have no ownership rights to the artwork for the cartoons they create.
In 1989 the United States Supreme Court established a 13-factor test to ascertain whether an individual is an employee who would be subjected to the work for hire rule. Community for Creative Non-Violence v. Reid, 490 U.S. 730 (1989).
Suffice to say that the court utilizes a standard similar to the one involved in determining if an individual is an employee covered by civil rights statutes: the common law agency test.
The second context is if the work is created by an independent contractor under special order or commission. This appears to be Mr. Pitts’ circumstance.
Work for hire projects, however, are limited by the Copyright Act to the following categories: “a contribution to a collective work, as a part of a motion picture or other audiovisual work, as a translation, as a supplementary work, as a compilation, as an instructional test, as a test, as answer material for a test, or as an atlas, or if the parties expressly agree in a written instrument signed by them that the work shall be considered a work made for hire.”
Clearly, a film’s musical score fits within the scope of this limitation. By signing such a contract you would most likely be waiving your rights to royalty payments as well as copyright ownership.
Nonetheless, you can negotiate with the party who has commissioned you to include a provision in the contract you are asked to sign to give you a portion or all of the royalties.
This, of course, depends upon your relative bargaining strength — maybe if you changed your name to John Williams. (No, that isn’t legal advice!)
Nothing in this article should be construed as formal legal advice given in the context of an attorney-client relationship.