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Tuesday, Sep. 19, 2000

Why "Work Made For Hire" Legislation Cannot Be Applied To Sound Recordings

Last November, recording artists received a shock. Without hearings or consultation, Congress had decided -- in the context of a longer bill amending the copyright laws -- to make "sound recordings" eligible for "work-made-for-hire" status. That meant artists' recordings might, under some circumstances, belong not to those who created them, but rather to their employer or, worse, to the person or entity that merely commissioned the recording.

Once they learned what had happened, artists like Sheryl Crow were not happy. The recording industry had scored a coup. But the artists were right to be irate -- for the legislation violates the Constitution, and is bad policy to boot. Two weeks ago, a bill was introduced to repeal the "work made for hire" sound recordings provision. Since its introduction, the bill has been approved by the House Judiciary Committee, and it should be passed without delay.

Copyright, The Constitution And "Work Made For Hire"

The framers of the Constitution would not have been surprised at Congress' bid to place greater power over artists' copyright in employers' hands. They expected those holding power -- here, Congress and the employers -- to abuse it, and so they dispersed, divided and decentralized power. Our Constitution's separation of powers illustrates this principle. So does copyright -- a doctrine enshrined in the Constitution that requires the right to control the copying of works to be placed in the hands of individual "authors," in order to decentralize control over these valuable works.

copyright, at least in some instances, from authors to employers? Wasn't the shift improper? The answer may be yes. The law transforms those who employ, or commission, authors or artists into "authors" for all legal purposes. But these employers are hardly what the framers meant by "authors." Thus, the work-made-for-hire provisions are on shaky constitutional ground.

Nevertheless, these provisions have been justified, when the artist is also a full-time employee, on the ground that the employer creates what courts have called the "instant and expense" of the creation. In effect, courts have suggested, the full-time employer deserves to be the "author," because he is the cause of the creative work. Some have tried to offer similar justifications for the "commissioned works" category of the legislation -- which gives copyright to one who commissions a work, even if he is not the artist's full-time employer. But this is even more of a stretch -- for commissioning a work plays an even smaller role than does full-time employment of the artist in causing the work to come into being.

The Dubious Extension of "Work Made For Hire" To Sound Recordings

In summary, the constitutional case for "work made for hire" legislation is weak, particularly with respect to commissioned works. And it is nowhere weaker than in the case of commissioned "sound recordings." Under industry practice, those who commission sound recordings -- members of the recording industry -- do not bear the expense of the recording, nor do they exercise any of the creative oversight that might justify endowing them with the status of "authors" -- and thus with copyright. Rather, the artists bear the expense, bear the risk and retain creative control. It is obvious that, in a constitutional sense, they are the true authors.

Not only are the "work made for hire" provisions unconstitutional as applied to commissioned sound recordings, they are also bad policy. In effect, they centralize control over sound recordings in an industry that is increasingly an oligopoly of multi-national companies. Thus, control over these valuable cultural works is wielded, for the entire duration of copyright protection, not by individuals but by corporations. This is not the decentralization of copyright that the Constitution requires; it is a concentration of power the framers would have feared.

Even without these provisions, artists still contracted with the recording industry, in many cases transferring full copyright protections. And they will continue to do so -- at least until self-publication on the Internet turns into a profitable enterprise. But there is a crucial difference between dealing with copyright by contract, and through "work made for hire" legislation. When artists transfer copyright by contract, they are protected by the termination provision of the 1976 Copyright Act -- which gives them the right to recapture the work 35 years after the deal is struck. The Act's protection at least allows artists to capitalize on a work that has grown far beyond its perceived value at the time of the initial transaction (say, the "Survivor" theme). But under "work made for hire" legislation, the Act protects only the company -- the putative "author" -- and not the artist herself.

Congress' Mistake: Why "Work Made For Hire" Was Wrongly Expanded

Despite these constitutional and policy arguments, last year members of Congress succumbed to the recording industry and added "sound recordings" to the commissioned "work made for hire" provisions. Why? First, Congress was told that the change merely reflected industry practice. Second, the claim that this was simply industry practice sounded valid to a Congress that has never paid particularly close attention to the way "work made for hire" operates -- with the notable exception of Senator Thad Cochran, who for years offered amendments to protect artists from the many abuses the 1976 Act's "work made for hire" provisions worked.

But industry practice this was not. Granted, the industry insisted on "work made for hire" provisions in contracts, as did every other major industry. But these provisions were usually unenforceable prior to last November -- because until then, they conflicted with the "work made for hire" statute. The statute stated that such works could only be commissioned "works made for hire" if they fell into certain statutory categories; sound recordings rarely fit any of them. Thus, the legislation was not just a memorialization of industry practice; it effected change. Suddenly the contract clauses that were wishful thinking became law. Quite a coup for the industry, and one rightly attributed to congressional misunderstanding.

The Lessons Of The "Work Made For Hire" Debacle

provisions to commissioned sound recordings is in the works. Towards that end, the recently introduced bill that was approved by the House Judiciary Committee to repeal these provisions should be enacted into law as soon as possible.

What can we learn from the experience? That Congress does not fully understand the legal regime that covers extremely and increasingly valuable copyrightable works now so easily distributed in the Information Era. That industries -- including the recording industry -- will always try to overreach, a lesson the Framers could have taught us. And that the Constitution has lessons for us even in this fast-paced, technology-frenzied era.

Marci A. Hamilton is Visiting Professor of Law at New York University School of Law. Professor Hamilton testified before the House Subcommittee on Courts and Intellectual Property of the House Committee on the Judiciary in June 2000 that the sound recordings amendment to the commissioned works made for hire provisions of the Copyright Act run contrary to constitutional copyright law and copyright policy.

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