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FAQ on Sound Recordings as Works Made for Hire

1. What is a "work made for hire?"

A work made for hire is a work for which a person or entity hires or commissions many people to collaborate for the purpose of creating that work. In such a case, the copyright in that work is owned by the person who does the hiring or the commissioning. A work may only be a work made for hire if the collaborators expressly so agree in writing.

2. Are sound recordings works made for hire?

Yes. A sound recording is a work for which an entity commissions many people -- featured artists, background musicians and vocalists, producers, arrangers, mixers, and studio engineers, and others -- to collaborate for the purpose of creating that sound recording. However, it is a work made for hire only if the entity and the other collaborators expressly so agree in a recording contract or contracts.

3. What does it mean to be eligible for work made for hire status under the Copyright Act?

Under the definition of “work made for hire” in the Copyright Act, works are eligible for such status (meaning that such works by written express agreement can be works made for hire) if there is an employment relationship or if certain types of works are commissioned. Included among the list of works commissioned are “a contribution to a collective work” and “a compilation.” Both of these categories include sound recordings. A clarifying amendment was signed into law on November 29, 1999 specifically listing sound recordings. The legislative history clearly indicates that this was not meant to imply that sound recordings were not included already as collective works or compilations, but rather merely specifies them as their own class of works. This is consistent with a law in 1972 which grants sound recordings their own copyright.

4. Why weren’t sound recordings specifically listed before?

When the work made for hire definition in the Copyright Act was developed, sound recordings had not yet been granted statutory copyright status. The inclusion of sound recordings as a separate category was therefore not considered by Congress. The new specific listing updates the definition but does not change the status of sound recordings.

5. Are sound recordings registered as works made for hire with the Copyright Office?

Yes. Since they were granted copyright status, sound recordings have been registered as works made for hire with the United States Copyright Office. These registrations as works made for hire have been made by both artists and recording companies.

6. What is the "termination right?"

If an author of a work grants exclusive rights to someone else for use of that work, the Copyright Act allows those authors or their successors to “terminate” that grant between 35 and 40 years after its execution. This termination right does not apply to works made for hire because the “author” is the person or entity who hired or commissioned other people to collaborate for the purpose of creating that work. Thus, if the parties do not expressly agree in writing that a sound recording is a work made for hire, then the collaborators are joint authors of that sound recording. These collaborators can include the featured artists, background musicians and vocalists, producers, arrangers, mixers, and studio engineers, among others.

7. Why shouldn’t the termination right apply to works made for hire?

Imagine the chaos that would result if all collaborators involved in a motion picture or sound recording exercised a termination right. Each would have the right to separately exploit the work on a nonexclusive basis in the United States, or would have to unanimously agree on exclusive exploitation. That’s why collaborative works like motion pictures and sound recordings are expressly agreed to be made as works made for hire.

8. Does the amendment change the applicability of the termination right to sound recordings?

No. Sound recordings have always been eligible for work made for hire status, and when agreed to be so in writing, are works made for hire. Thus, the clarifying amendment specifically listing sound recordings as eligible for work made for hire status when such status is agreed to by the contracting parties does not change the law.

9. Do artists rely on work made for hire status?

Yes. Artists rely on work made for hire status to protect their own master copies of sound recordings. They register their masters as works made for hire and enter into work made for hire agreements with producers and other collaborators for this reason.

10. How does work made for hire treatment benefit artists and consumers?

Work made for hire treatment allows for the effective promotion and distribution of a recording so that payments can be made according to contractual agreements. If the termination right could be exercised by all collaborators on a sound recording, all of the collaborators would be in competition with each other and commercial exploitation (especially the offering of exclusive rights to the sound recording) would be impossible without the agreement of all of the collaborators, to the detriment of both artists and consumers.

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The Recording Industry Association of America (RIAA) is the trade organization that supports and promotes the creative and financial vitality of the major music companies. Its members comprise the most vibrant record industry in the world. RIAA® members create, manufacture and/or distribute approximately 85% of all legitimate recorded music produced and sold in the United States.

In support of this mission, the RIAA works to protect the intellectual property and First Amendment rights of artists and music labels; conduct consumer, industry and technical research; and monitor and review state and federal laws, regulations and policies. The RIAA® also certifies Gold®, Platinum®, Multi-Platinum™ and Diamond sales awards as well as Los Premios De Oro y Platino™, an award celebrating Latin music sales.

Contact:
Jonathan Lamy
Cara Duckworth
Liz Kennedy
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