- Serious Musician
- Posts: 4400
- Joined: Tue Jun 02, 2009 7:19 pm
- Gender: Male
- Location: Denmark
The reason employed musicians don't have to work off the card is that what they do is owned by their employer by default. That's how copyright law works in the US (overseas in Europe it is the other way around). I have to stand by the claim that you need to be an "employer" to contract work-for-hire musicians in the US of A due to the facts stated in the official documents. Sound recordings does not qualify as works for hire unless they are a product of an employer-employee relationship, so it does not follow the recording, it follows the relationship. Here's some backup..
Section 101 of the Copyright Act (title 17 of the U.S. Code) defines a “work made for hire” in two parts:
a work prepared by an employee within the scope of his or her employment
a work specially ordered or commissioned for use
1 as a contribution to a collective work,
2 as a part of a motion picture or other audiovisual work,
3 as a translation,
4 as a supplementary work,
5 as a compilation,
6 as an instructional text,
7 as a test,
8 as answer material for a test, or
9 as an atlas
While it is true that you as a songwriter may qualify as an independent employer, as stated under the section on Agency Law, it is by no means clear that you always will. Later in the text Copyright Gov writes:
"The closer an employment relationship comes to regular, salaried employment, the more likely it is that a work created within the scope of that employment will be a work made for hire. But because no precise standard exists for determining whether a work is made for hire under part 1 of the defini- tion in section 101 of the copyright law, consultation with a lawyer may be advisable." (same source)
There has been some law cases where work-for-hire was disputed due to that the work could not really qualify as a regular employer-employee relationship, so the work-for-hire ammendment in the US copyright law is clear when the musician actually does work for an employer in a professional setting, but it is not as clear in situations where this is not the case, especially because "sound recordings" is not on the inclusive work for hire list as you can see in section 101b above. It used to be in a short period in the late 1990s, but was taken off the list again in 2000.
Some of the things that can disqualify a work-for-hire is things like tax treatment of the purported employee, and whether or not the claimed employee received employee benefits, which most independent songwriters don't worry about. So, again, a work-for-hire is not as clear cut as you'd think. The closer the employer-employee relationship is, the clearer it is, but also the more independent the parties are, the more likely it is that a work for hire may not be valid.
Here's a backup for the other claim that union musicians are not allowed to sign a work-for-hire http://www.bmi.com/news/entry/the_top_5 ... r_remedies (section 3 under "Remedy").
Sorry for being a nerd about this, it is quite dry and detailed stuff. I have been researching this for a while because I was having demos made in the US as well, and was wondering how the US laws work, when I was trying to operate from overseas. Hopefully getting it right. I can read, but I'm not a lawyer, so providing the sources in case you wonder. Also some of this may also just be practical if you are not in the US, but try to get music into the US market.
- King of the World
- Posts: 11809
- Joined: Sat May 17, 2008 4:20 pm
- Gender: Male
- Location: Up in Indiana, where the tall corn grows
Yes, in LA there are a lot of union musicians that are on salary, and of course that makes them employees, and their work product for hire, but I theenk you would find that most musicians working for so-called demo houses are not on salary. (that's an opinion, not a fact, lol)
In my neck of the woods, anybody I hire is an independent contractor, as am I, unless I'm partnering with another publisher or composer. I'm in a red state that has similarly lax rules to Tennessee's, when it comes to how employee status is determined. Here, the burden of proof is on the regulatory agency, not the business. The IRS, on the other hand, has its own set of rules.
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