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Volume 36, Issue 2 (Spring 2014)

Going Solo: Harmonizing Judicial Treatment of the Work-For-Hire Preclusion to Music Copyright Termination
by Kristen O'Connor



            This Note suggests that the “work for hire” exception under the 1976 Copyright Act requires enhanced judicial scrutiny in light of the recording artist-record label relationship. Under the statute, authors of copyrighted work may terminate a copyright grant thirty-five years after its execution beginning in 2013- provided the material is not a work for hire.  The Supreme Court’s statutory directive, a thirteen-factor test for determining employment status, is doubly problematic:  first, the test is inconclusive when applied to the unique professional character of the artist-label paradigm; and second, inconsistent circuit treatment of the test has rendered it ineffective as a statutory supplement.  This Note offers a clearer judicial template, derived from the torts doctrine of joint enterprise, for determining whether a sound recording is a work for hire.


            The artist-label relationship is uniquely synergistic, whereby both parties substantially contribute to the skill, control, and collective pecuniary interest of a sound recording. This Note posits that where an artist-label relationship demonstrates 1) an agreement; 2) a common purpose; 3) a collective pecuniary interest; and 4) a roughly equal right to control the instrumentality, the product of their joint efforts- a sound recording- should not be considered a work for hire. 


            My solution strikes an equitable balance between profit and principle.  Where an artist and a label engage in the creation of a sound recording tantamount to a joint enterprise, the label enjoys the pecuniary benefit of thirty-five year copyright ownership and the artist reclaims this ownership thereafter.  In sum, my solution not only permits equal enjoyment of copyright, but funnels unwarranted ownership claims from ancillary or background artists.  



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