There is some confusion among many people as to exactly what a “work-for-hire” agreement is and what it accomplishes. This article will explain when and how it is used.
Under copyright law, when a person creates something with at least a minimal amount of originality, they own it unless and until they transfer ownership to someone else, in writing. One way the “work-for-hire” agreement is used in the music biz is to transfer rights from people who make contributions to recordings.
An example is when you record a song. People who contribute to the recording own their contributions to the master (since they are independent contractors), unless they transfer ownership, in writing, to you, the employer. So there will ordinarily be a “work-for-hire” provision in the contacts for the producer, musicians, and singers who contribute to the master so ownership is transferred to the employer. The wording of a “work-for-hire” agreement with a Producer is usually something along the lines of the following.
Company and Producer acknowledge andagree that Producer is rendering services hereunder as an independent contractor. However, for copyright purposes, Producer shall be deemed an “employee-for-hire” of Artist. The results and proceeds of Producer’s services, the Master and all reproductions made therefrom and the performances embodied therein shall be deemed to be “works made for hire” and the copyrights in and to the Master (as distinguished from the underlying composition) as between Company/Producer and Artist shall be entirely the property of Artist or his designees, free of any claims whatsoever by Company and Producer, or any person or entity deriving any rights or interest through or from Company and/or Producer, and Artist shall have the exclusive right to copyright the Master in his name or the name of his designee. In the event that the Master or the results and proceeds of Producer’s services are not deemed to be “works made for hire,” Company and Producer hereby assign all of Company and Producer’s right, title, and interest therein to Artist.”
As noted above, the work-for-hire agreement should contain:
1. A statement that even though the producer is an independent contractor, for purposes of copyright law, the producer is deemed an “employee-for-hire.” That means the employer who will own the master can do whatever he or she wants with it (change it, sell it, etc.) without the employee’s permission.
2. The “results and proceeds’ of the producer’s work (meaning the producer’s or other contributors work product) is deemed an “employee-for-hire.”
3. The copyright belongs to the employer.
4. There is a statement usually at the end that if for any reason the work is not deemed a “work-for-hire,” then the employee assigns (transfers) his or her contributions to the work to the employer.
Make sure your “work-for-hire” agreements contain the wording noted above. Also, I suggest getting these agreements signed before the work is done. Keep in mind if you sign a “work- for-hire” agreement (as the employee) you are giving up your copyright ownership rights in your work product.
GLENN LITWAK is a veteran entertainment attorney based in Santa Monica, CA. He has represented platinum selling recording artists, Grammy winning music producers, hit songwriters, management and production companies, music publishers and independent record labels. Glenn is also a frequent speaker at music industry conferences around the country, such as South by Southwest and the Billboard Music in Film and TV Conference. Email Litwak at [email protected] or visit glennlitwak.com.
This article is a very brief overview of the subject matter and does not constitute legal advice.