So, if you follow me on Twitter, you know that my brother and I took a day trip to New York City this week to see the Broadway show Waitress, that first premiered in 2016. Sara Bareilles – who also write the music and lyrics – and Jason Mraz play the two starring roles – roles that were filled by Keri Russell and Nathan Fillion when the movie Waitress was first released in 2007. Even though the movie itself was only moderately successful, stage rights for the film were purchased shortly after it was released and the creative team, including Sara, began working on bringing it to the stage. Since then, the show has become a massive success and if you have a chance to see it, you should take it.
Waitress, just like any major creative undertaking, is a collaboration. A lot of love, sweat, and tears from a lot of different people go into every element of the production and it shows. But what doesn’t show (and if everyone has done their job right, should never show) is the complicated legal framework that lays out not only who gets credit for writing the show, creating the costumes, or playing the oboe, but also what that credit entails and how each of those people will be compensated.
Now, for the vast majority of you creators, the legal issues you face won’t be as complicated as those involved in staging a Broadway production. But, for every creator, understanding how collaboration impacts your copyrights is essential.
For the purposes of this post, let’s imagine you’re a poet, and you have a good voice and would like to convert your poetry into music. The only problem is you really don’t like other people and you have no interest in starting a band. Or having any collaborators at all, if you can avoid it. Luckily for you, you’ve met a musician named Hope, and she can really lay down a beat. She’s a little odd, she’s really into feathers, and her business card says that her job is “To Sing the Tune Without the Words” which you feel might be a bit pretentious, but who are you to judge. Anyway, you’ve listened to some of her raw beats and liked them, but does that mean you have to work with her? What are your options?
You Have Three options:
Section 101 of the Copyright Act allows employers to take direct ownership of the copyright associated with their employees’ creative work in two situations: (1) if the copyrightable material was created by the employee in the normal course of their employment (i.e. a W-2 employee performing their normal job) or the work was specially ordered or commissioned for use with a written agreement using specific language that the work is either “made for hire” or that it is “a work made for hire” and the work must fall into one of the following nine specific categories: (1) a contribution to a collective work, (2) a part of a motion picture or other audiovisual work, (3) a translation, (4) a supplementary work, (5) a compilation, (6) an instructional text, (7) a test, (8) answer material for a test, [or] (9) an atlas. If the arrangement doesn’t meet all of these tests, it will not be considered a “work-for-hire” and ownership of the copyright stays with the creator.
Is this a good option for you and Hope? There are benefits associated with “work-for-hire” arrangements for you, specifically, it means that at the moment of creation the copyright for the music Hope creates for you belongs to you. It also comes with complete ownership of the copyright and the authority to do whatever you choose with the work, including editing it, sampling it, altering it, or anything else necessary, without consulting with Hope. This is why large collaborative projects, like movies or Broadway musicals, will often try to rely on “work for hire” arrangements, so that they won’t have to worry about transferring copyrights from creators who may try to limit how their work can or can’t be used. And that is also why collaborative projects and collective works are amongst the categories that allow independent contractors to be used on a work-for-hire basis, but works without such complicated ownership issues will default to the “traditional” copyright rules.
So, though audio recordings can qualify as works made for hire, it’s not guaranteed that your album, as a larger project, will qualify as a collective work or compilation as required by the Copyright Office because of your tendency to work alone with very few collaborators. In addition, you may find that Hope is reluctant to agree to a work-for-hire arrangement. Hope may want one of the next two options, because licensing or transfer agreements can give copyright creators greater protections when doing work as part of a larger project.
One of the most basic foundations of copyright law is also one of the most misunderstood; specifically, that a copyright is a legal right that vests (aka stays) with the creator when the original work is created. To have a valid copyright, all you need to do is create. Now, there may be limits to what you can do with that copyrighted work and certain statutory protections only apply to registered copyrights, but the act of creation itself also creates the copyright. So, presuming that you did not specifically commission anything from Hope as a “work-for-hire,” you and Hope will have to come to some sort of agreement that gives you some rights over Hope’s copyrighted work.
Now, beginning with the assumption that Hope has already created a beat or an instrumental that you want to use on your album, Hope could offer to simply license the rights to use the instrumental to you. For Hope, licensing the copyright gives her the most control over how her work is used or not used. Theoretically, Hope could place limits on how you can change the instrumental, where the instrumental can be played, who else can use the instrumental, or even reserve the right to sell or lease the rights to use the instrumental to someone else. Hope could also create some kind of ongoing royalties or licensing fee arrangement that would require you to continue to pay Hope going forward (especially if the song were to become a hit.) And, as the key issue, Hope could retain authority to revoke the license if you were to violate the terms of your agreement (i.e. if you didn’t pay what was owed or misused the instrumental) which is a pretty powerful bargaining chip since without the instrumental, you’re stuck with just your poetry.
So, it’s pretty clear why Hope would like a licensing arrangement, but are there any positives for you? One potential positive for you in accepting a license is that it is likeliest the cheapest way to get rights to Hope’s instrumentals. And if the beat or instrumental is fairly generic, you may not even care about having exclusive rights to use it. But a license is always going to be risky, especially for someone like you, who doesn’t want any kind of on-going business or collaborative relationship with Hope. For a loner who just wants to write poetry and make music, a license can be a permanent tether keeping your work from taking flight. So what’s probably the best middle-ground for you and Hope?
In all likelihood, the best approach for you and Hope is a Copyright Transfer Agreement. Sections 201-205 of the Copyright Act cover the rights of copyright holders to transfer those rights to others. This is distinct from a “work-for-hire” situation because the rights to the copyright have vested with the creator and now the creator is choosing to transfer those rights to another person. This is also distinct from a license, because the creator is transferring their entire rights under the copyright (though the transfer can be subject to some limitations) and granting the purchaser the right to register the copyright in their name. The terms and conditions of a transfer agreement can vary depending on the type of work but generally, once a transfer is completed, the transferee (in our case, you) will have full use and ownership of the copyright, limited only by the same limitations that would have governed the creator.
Why is this a good middle ground for both you and Hope? For you, a copyright transfer agreement gives you what you want most, the ability to use Hope’s instrumentals in your music without having to deal with Hope herself. It also allows you to register a copyright for both the lyrics and the instrumentals for your song, which makes enforcing your control over the song easier further down the line. It also allows you to make changes to the instrumentals or even sell or lease them to someone else without Hope’s approval.
But a copyright transfer agreement can also be a valuable tool for Hope, especially if she frequently records beats or instrumentals for other singers and artists. By using transfer agreements (as opposed to the “work-for-hire” arrangement discussed above), Hope has a contract that allows her to revoke the transfer if contractual elements aren’t met, so if Hope is not paid, or if you otherwise violate the transfer agreement, Hope has the legal right (usually as laid out in a termination clause in the agreement) to revoke the transfer and reclaim her copyright. Hope can also require that credit be given when her instrumental is used on the album. While this may not seem like a great deal of authority, it is still a powerful way for Hope to protect both her financial interest in the deal but also build a reputation through her work (as opposed to many, many work-for-hire artists and creators who have simply been erased by studios, publishing companies, or comic-book companies.)
Even if you’re not a singer, managing your copyrighted material is vital and anyone who creates and/or sells creative works should be educated about their rights and how to protect them and enforce them. For almost any freelancer or independent creative, having some kind of copyright license agreement and copyright transfer agreement to use with clients is a good idea. And if you aren’t sure where to start, give me a call. We’ll be able to find the right solution for you and your creative needs.
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