Hearing On Public Law 106-13 Re:"Works Made For Hire"
November, 2000
Mr. Chairman and members of the Committee, my name is Barry Bergman and I am President of the Music Managers Forum, as well as a personal manager. The Music Managers Forum is an association representing the interests of personal managers and recording artists, with affiliates in 10 countries and branches in many US cities including New York, Los Angeles, Nashville, Seattle, San Francisco, Boston and Washington DC. Our membership consists of individual business people who find, develop, nurture and guide the careers of recording artists, as well as some artists who are self-managed.
We believe these hearings are a major step forward for artists and managers due to the fact that until the formation of the MMF, there was no organization representing the interests of featured artists and managers. Furthermore, we are an organization comprised entirely of volunteers, so we do not have the money to hire high priced attorneys and lobbyists to look after the interests of featured artists and managers.
Therefore, we are grateful to have this opportunity to submit testimony on behalf of featured recording artists and our membership, who fully support the repeal of the recent Copyright Amendment granting work for hire status to sound recordings.
Managers of recording artists have a unique perspective on this issue, as we understand the nature of the recording artist/record company relationship better than most. We effectively balance the interests of art and commerce every day.
It has been noted that this controversial amendment was presented as a "technical correction" to existing copyright law. Our membership feels very strongly that this amendment represents a substantial change to existing copyright law, and that Congress has not been provided with enough information to make an informed decision. Essentially, you have heard only one side of the story. I hope that by presenting the featured artist viewpoint, you will conclude that repeal of the amendment is warranted, and further study and discussion is absolutely essential to fairly protect the interests of performers, while also addressing the concerns of the recording industry.
Other distinguished panelists will provide detailed and varied explanations for why the amendment should be repealed or let stand, while others may address the dubious method by which the amendment was passed. I am going to focus solely on the point that the creations of featured recording artists are not "specially ordered or commissioned works" and that the recent amendment to the copyright law contravenes the intent of Congress when it amended the copyright law in 1976.
Copyright Law is based on the concept that original authorship and ownership results when an artist creates a work. The Copyright Office logo is a circle with a pen stretching through it, touching the other side of the circle, which signifies that copyright protection of the author starts the second the pen touches the page. In the instance of sound recordings, a recording artist is the original author and owner of their performance when it is fixed for reproduction, whether on tape, a compact disc, or as Thomas Edison originally invented, on a metal cylinder.
When the Copyright Act was amended in 1976, Congress recognized that, in certain limited cases, authors might be hired to create certain works, and in that event, the employer would be the author and owner. This is what was intended in the work made for hire provisions of the 1976 Copyright Act.
Congress and the copyright community worked diligently for years trying to define what would be and would not be a work made for hire. The interests of the creators of the works were carefully weighed against the interests of the users of copyrights. Eventually, a course of action was chosen which carved out very defined exceptions to the rule that all works are originally owned by their creator.
Before the recent amendment was passed, there were two alternatives that could designate sound recordings as works made for hire. The first was the traditional employer/employee relationship. The recording industry does not contend this situation exists with featured artists. In fact, virtually all modern recording contracts state explicitly that the artist is not an employee of the record company.
Since this alternative does not apply to featured recording artists, record companies now maintain that sound recordings are "specially ordered or commissioned works," which is the second statutory alternative.
There is simply nothing in law or practice to support the record company contention that a featured artist album qualifies as a work made for hire. A work can only be "specially ordered or commissioned" if it falls into one of nine very specific categories. For example, a work made for hire can be created when a book publisher hires a translator, or a movie producer hires an actor. The key point is that the employer has a choice of who to hire to create the work, and the employer controls most of the creative aspects. By limiting the categories in this way, Congress clearly showed its intent to recognize only very narrowly defined situations where an employer could hire any one of many people to finish a creative process started by the employer. Courts have uniformly upheld this narrow application of the work made for hire principle.
Proponents of this amendment argue that a record is like a motion picture, and since motion pictures are listed as a possible work made for hire, then a sound recording should as well. This is not a proper analogy. The real analogy is between recording artists and book authors. Like a recording artist, the author of a book creates the idea for the book, and starts the creative process well before walking into a publisher's office. A publisher might offer the writer an advance, an editor to work with, cover artwork, manufacturing, distribution and marketing services. These are analogous to the services record companies offer artists. However, a publishing company is not deemed the author of a book, except in very limited circumstances, such as the creation of an encyclopedia.
By declaring that all sound recordings are eligible for work made for hire status, the intent of the 1976 Copyright Law Amendment has been subverted by not carving out these limited exceptions. The vast majority of artists work for years creating their music before a record company ever comes into their lives. Furthermore, record companies do not generally tell artists, especially featured artists, what and how to record, although they may provide guidance regarding marketability. Given these circumstances, we believe classifying sound recordings of featured artists as "specially ordered or commissioned works" is both legally and morally wrong.
We believe that managers and artists everywhere are willing to work with Congress and the Recording Industry to carve out limited exceptions that better fit into the work made for hire situation, taking into consideration the spirit of the original law and the economic concerns of the recording industry. We ask that you repeal this amendment, and let us have a negotiation where all interested parties are present and accounted for. Then, and only then, will Congress have the opportunity to consider legislation which is fairly negotiated and reflects the concerns of everyone affected by the change.
Thank you very much for your consideration.
