Musician Work For Hire Agreements Explained
A "work for hire" has a specific legal meaning. According to the U.S. Copyright Act, "a work specially ordered or commissioned for use as a contribution to a collective work, as a part of a motion picture or other audiovisual work, as a translation, as a supplementary work, as a compilation, as an atlas, as an instructional text, as a test, as answer material for a test, or as an answer key to a test if the parties agree in a written instrument signed by them that the work shall be considered a work made for hire…" is a work for hire if the parties agree in writing, or a "motion picture or other audiovisual work, [if] the parties expressly agree in a written instrument signed by them that the work shall be considered a work made for hire."
A work made for hire is important in the music business because it can determine when and if the author of a musical composition will secure protection for the work.
A work made for hire agreement can be either explicit or implicit. Many times, the typical employment agreement will cover work produced during the course of employment . The phrase "produced during the course of employment" means that the work was created specifically for that employer. For example, a company employee may create a work that meets the above statutory definition of a work made for hire, and therefore becomes the property of the employer, not the employee. Many times you will find that musicians hired to perform on recorded tracks will execute a work for hire agreement at the recording studio. In a written agreement, the parties will usually identify a specific task the musician is being hired to perform, such as drumming on a single recording for an artist. However, under case law, a court may imply that an artist who hires a session musician (for example, to play guitar on an album) has implicitly commissioned that musician to produce the work, but nevertheless know that if you are an artist or songwriter, a work for hire agreement is intended to establish that the copyright owner of the work is not the creator, but rather, the commissioning party.
Components of a Musician Work For Hire Agreement
A Musician Work For Hire Agreement should always be in writing and both parties should sign it. It should also include the following key components:
Name of the parties – A clear identification of the parties to the agreement, including their legal names (for individuals) or business names (for corporations/LLCs), as well as their addresses and, if applicable, their contact information.
Definition of services to be performed – A description of the scope of services to be performed by the musician, including how many recording sessions are to be completed, how long each session is expected to last, and whether additional work is required outside the context of each session, such as overdubs or vocal tracks, or if the musician’s services are expected to include additional elements.
Payment – A provision describing how much the musician will be paid for the services to be performed, including whether he or she will be paid by the hour, per session, or on some other basis, e.g., a one-time flat fee. The musician may also be required to provide an invoice, requesting payment no later than a specified number of days after a final session, detailing how much he or she is owed for services performed under the agreement and how such payment should be made, such as by cash, check, or wire transfer. If the musician is not receiving payment until a sale of the music occurs – such as through a sale of an album or licensing agreement – the Musician Work For Hire Agreement should state when payment is expected and how much will be paid to the musician (i.e., as a flat fee or percentage of the gross income received from the sale of the music). Some agreements prohibit the withholding of payments pending a sale, regardless of the anticipated future sale of the music.
Rights to work – A description of the rights the Artist is granting to the Producer or Record Label with respect to the Music being created under the agreement. This grant of rights is what separates a "work for hire" agreement from other contracts that grant rights to the Music and other underlying copyrights created under the agreement. Unless specifically otherwise stated in the Musician Work For Hire Agreement, it should be clear that the artist is granting all rights and ownership of the Music and copyright(s) to the Producer or Record Label. A label or producer may choose to restate that it wishes to own the copyright to the Music outright, as opposed to a mere license of the artistic rights to the Music. This is so that the producer or label is not perceived as overly controlling the manner or length of the Musician’s contributions in the subsequent project (i.e., Album, EP, Soundtrack). The agreement should specifically state that the Music labeled as "The Album Title" on the final project (Album, EP, Soundtrack) is a "work made for hire" according to the Copyright Act. A listing of the performers’ names and clear identification of the Music are not required of the Musician Work For Hire Agreement at the time of execution. However, such elements should be included on the final project (Album, EP, Soundtrack). Some artists retain the right to be acknowledged in the credits of the project on which the Music is used, while others waive this right.
Advantages and Disadvantages to Musicians
If you’re a musician, it is important to understand both the benefits and drawbacks that may arise in relation to your agreement. If you are not, yet are seeking to hire musicians, you need to be aware of how such an agreement can be problematic if it is not considered with proper due diligence.
The primary benefit to a musician when entering into a musician work for hire agreement is that the law does not provide for any ownership rights to arise in relation to any recorded work. In other words, as soon as any recording is complete, the employer (which, in this example, would be the party hiring the musician) becomes the sole owner of that work, without the need for filing any additional documentation. This has been referred to as the "magic language" which distinguishes work for hire agreements from standard contract agreements.
However, this benefit can also pose a disadvantage to musicians. Specifically, once a musician signs such an agreement, they have no right to royalties because they have effectively been paid for their work, despite the terms of that payment. Additionally, many musicians are enticed by marketing schemes promising a large payday, when, in actuality, they will receive nothing from their contribution. As a result, it is essential for musicians to weigh all of these considerations before signing a musician work for hire agreement.
How to Write a Good Agreement
When it comes to musicians working in a collaborative environment, it is critical to have an agreement in place between employer and employee that includes a detailed description of the individual’s job duties, responsibilities and any compensation that is due. Without the proper language in the contract, a musician’s creation can become subject to dispute, as the company may attempt to better compensation terms or receive a claim on authorship of a creation. It is important to have an attorney draft the initial agreement, as they will have the knowledge of appropriate language as well as experience in dealing with potential disputes.
The following is a step-by-step guide to creating an effective agreement for a musician.
- Employee Name: As with all agreements, the full name of the employee whose services are being hired must be set forth in the document. If the employee ever operates under a DBA, that is additional language to include.
- Date: The date when the agreement was signed should be included in the agreement.
- Type of Musician: Is the employee being hired as a session musician and going to be performing specific parts of a song or will they be adding creative elements to the song as a whole? Is the employee being hired to be featured in a music video or photograph? Every instance should be spelled out in detail to avoid possible dispute.
- Compensation: Are there other terms that may be included in the agreement such as royalties, bonuses, etc. These should be included if they are applicable.
- Work Made for Hire Language: A definition of what is at issue and a statement that the parties agree that it is an independent contractor relationship between employer and employee and not an employment relationship.
- Ownership by the hiring party after the final payment has been made. This is critical because if the musician has not been compensated for their work then the company may be required to share ownership with the creator.
- Specific statement acknowledging that there is no artist rights that can be asserted and that all rights are assigned to the hiring party.
- Statement of indemnification by the musician of the hiring party in the event that retaining the rights of the creation is challenged in a court or by an artist rights group.
- Statement acknowledging the ability to assign the creation in the future by the hiring party.
- Additional Rights: If the ownership has already been assigned to the hiring party, then a statement can say that the company has unlimited rights to perform, create derivative works, publish, etc.
Common Mistakes and Misunderstandings
Musician Work for Hire agreements are often written and signed incorrectly. The most common misconception is that by its very nature, a musician is creating a work for hire. A work for hire only exists where the parties agree, in writing, that the work is a work for hire and in their agreement define the work as a work for hire. If there is no written agreement, the Copyright Act makes no exception for works done by musicians. In the absence of a writing specifying that the music is a work for hire, the musician will be considered the author and owner of the rights in the composition and sound recording, unless it was done "in the scope of employment."
Independent contractors are not considered employees under the Copyright Act. If the composer is an employee , courts generally presume a work done in the scope of employment is a work for hire. Only the work done by employees is considered a work for hire. Musicians that are considered employees can enter into musician work for hire agreements as a condition of employment. This will include language that the music is a work for hire. Where an employee enters into musician work for hire agreements in the course of employment, language should be included in the agreement that the employee waives any rights in the music.
A common pitfall is failing to abide by the statute of frauds. While they are not required to be signed, to be enforceable, musician work for hire agreements must be in writing. If there is a dispute in court, a judge may not enforce an oral work for hire agreement. Moreover, if an attorney is recording with more than one client and has them sign a musician work for hire agreement in an iPad app or "on screen" and both parties witness their own signature, there is legal ambiguity as to whether the "on screen" agreement violates the statute of frauds.
Legal Examples and Case Studies
Example: Copyright Law and Work For Hire Agreements
In 2014, the LA Music Collective, a musician entertainment group, sued David Foster for among other things, breach of their alleged work for hire agreement. The suit alleged that the musicians joined the Collective after Foster contacted them to perform with him as a group – they would basically be his touring/rehearsing band. According to the Plaintiffs, Foster asked for and received the Collective’s rate at the time. When negotiations fizzled out, including a confidentiality provision, Foster allegedly stopped communicating with the Plaintiffs, and failed to pay them for several recording sessions they performed in anticipation of the concert series. The plaintiffs alleged work for hire and copyright infringement asserting that the Defendant purposely cut them out of any future royalties. Outcome: The suit, which is still in process, will likely settle before a judgment. As this matter illustrates, the importance of written agreements cannot be overstated. It is critical to protect yourself, your creative works and your ability to profit from your labors.
Frequently Asked Questions about Musician Work For Hire Agreements
What if I already paid the musician, but they haven’t signed the work for hire agreement?
In the music world, it is not uncommon for a record label or song writer to ask a musician to provide their services prior to entering into a work for hire agreement. It is always better to have a signed agreement – prior to performing any services. If you already paid the musician, and they haven’t signed the work for hire agreement, you still own the copyrights in the work they did. In other words, if you paid the musician to perform on your song and they never signed the work for hire agreement, you own the song and you can use it without permission from the musician.
My musician provided a recording of my song in which they play guitar . Are they a co-owner in the copyright?
Not necessarily! The answer will depend on the agreement between the musician and the songwriter. If you made a deal with them to provide one guitar track in exchange for an agreed compensation, and no further compensation, then the musician is not a co-copyright owner of the song. However, if you didn’t make an agreement with them to perform one guitar track is exchange for compensation, then they might be a co-owner of the copyright.
If I don’t have agreement with the musician, is there anything I can do?
If a musician performs on a song, and you did not specifically have an oral agreement with them regarding co-ownership of the copyright, you are the sole owner of the copyright. We recommend that musicians have a strong work for hire agreement to prevent future copyright disputes.