The creative process that is so closely tied to the success of the entertainment industry often raises questions regarding ownership of creative works. While copyrights usually rest with the creator of a work, certain agreements can be made that transfer these rights to another party.

Generally, copyrights rest with the author or authors who originally create a work. However, the Copyright Act of 1976 contains a major exception, the “Work Made for Hire” Doctrine, which challenges the fundamental principle that copyright ownership lies with the individual who creates the work. In the case of a “Work Made for Hire,” the party for whom the work was completed is considered the author and thus holds the copyrights to the work created rather than the party who actually authored the work.

A Work Made for Hire is not, however, any work that you pay someone to create for you. In addition, it is not any work that you and a developer simply agree is a Work Made for Hire. Rather, “Work Made for Hire” is a specifically defined term in Copyright Law and applies only when certain conditions are met.

Disputes over what constitutes a “Work Made for Hire” often arise over two main issues: the distinction between an employee and a non-employee or independent contractor and whether or not the work in question qualifies as one or more of the nine categories outlined in the Copyright Act.

Section 101 of the Copyright Act defines a “work made for hire” as either:

1.  a work prepared by an employee within the scope of his or her employment; or

2.  a work by a freelancer (independent contractor) which is specially ordered or commissioned for use as a translation, as a part of a motion picture or other audiovisual work, as a contribution to a collective work, as an atlas, as a compilation, as an instructional text, as a test, as answer material for a test, or as a supplementary work such as a preface to a book, a forward or a musical arrangement, if the parties expressly agree in a written instrument signed by them that the work shall be considered a work made for hire.

If the condition of category one is met, copyright ownership belongs to the employer unless an employment contract specifies that the creation of copyrightable material is not within the scope of employment. If the creation of the work falls outside the scope of employment then the employee, and not the employer, would have copyright ownership of the work.

If the conditions in category two are met, then the party hiring the freelancer would own the copyrights. If, however, these requirements are not strictly followed and the work falls outside the nine categories enumerated by the Copyright Act or a written agreement does not exist, then the freelancer would retain copyright ownership in the work.

Los Angeles intellectual property attorney, Anthony Spotora, commented, “It is the lack of a written instrument specifying the intended “Work-Made-for-Hire” relationship with independent contractors that commonly creates “Work-Made-for-Hire” copyright ownership issues. All too often, the intended owner seeks to argue that a “Work-Made-for-Hire” relationship was agreed upon, although it was stated only verbally. Subsequently, authorship of the work at issue ultimately winds up with its creator, rather that the intended owner. The second biggest misperception in freelance arrangements is that a written agreement specifying that a work is intended to be created on a “Work-Made-for-Hire” basis makes it so when, in fact, that is only the case if the work falls into one of the nine exceptions listed in Section 101 of the U.S. Copyright Act.”

Anthony Spotora is a Los Angeles entertainment lawyer and Los Angeles business attorney. To learn more, visit Spotoralaw.com.

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This past spring, one of the Department heads we work with at FremantleMedia invited us to attend the live performance of an “American Idol” taping. This taping, or rather, pop-hysteria, led to conversations relating to the management of those that do not win the title of the next “American Idol”.

Now we all know that the winner is locked into a contract with Music Label/Management Company, “19”, but what of the other near-Idols? Who gets to run their proverbial show? This question, in accompaniment to some of the surrounding conversations and eager talent managers, reminded us of a piece of legalese that has come up time and time again in our practice. The issue: Managers vs. Agents.

Whether you are a bona fide Talent Manager, a Stage Mom, or the girlfriend who listened to her boyfriend’s band play one night at the local pub and decided to serve as its manager, you should understand the differences between the roles that managers and agents are legally entitled to play. . . for your own good!

For starters, agents are licensed by the state they work in and most commonly earn their money by negotiating deals for their clients. Typically, they also enter into a client agreement which is, in pertinent part, regulated by industry labor unions such as, the Screen Actors Guild (SAG), the Writers Guild of America (WGA) and, the Directors Guild of America (DGA). Through these regulated agreements, the commissions that agents charge their clients are legally bound to a prescribed percentage. Furthermore, it should be noted that agents may not serve as a producer on their clients’ projects.

On the other hand, managers are not commission-regulated, do not need a license to ‘manage’ and, can charge their clients 15% or more. . . and often do. Moreover, managers may produce film or television if they wish to and so of course, they are also afforded the ‘glamour’ element in that they might find themselves in the spotlight one Award evening with an Emmy or an Oscar in tow.

In light of these representative differences, and as you might imagine, the ever-evolving entertainment industry has shifted gears over the years to accommodate and benefit from both of these roles. Without surprise to anyone, these specialty services have impacted not only the way talent pursues work, but the manner in which movies and television are actually made.

So what’s the big deal!? We all have a job to do, right!?

Well, one common issue arises from infuriated agents who argue that managers who attach themselves to their clients’ projects as producers are not legitimate producers and are consequently driving up production costs. Subsequent to such a contention, agents have put pressure on industry guilds by lobbying to either deregulate agents, or regulate managers. And, while no exact resolution has been reached to date, SAG has begun to pay closer attention to the black letter law and has consequently cracked down on the procurement of employment by managers for their clients. On the what you ask? On getting the talent a gig!

In California, Labor Code Sec. 1700.4(a) defines “talent agency” as “a person or corporation who engages in the occupation of procuring, offering, promising, or attempting to procure employment of engagements for an artist.” Moreover, Sec. 1700.5 provides that “[n]o person shall engage in or carry on the occupation of a talent agency without first procuring a license…from the Labor Commissioner.”

Therefore, ATTENTION ALL MANAGERS: Be Weary of The Services You Provide!

Procuring employment for your artist-client is not only illegal without proper licensing but, should you attempt to collect any unpaid fees, you can rightfully not only be denied those monies for having performed a service you were not licensed to perform but, you can also be ordered to return any fees already received!

So what’s the bottom-line? Both forms of talent reps are still widely used and widely needed in the ‘industry’. However, it is important that Managers know their role in their clients’ professional lives and also know the potential consequences they may face if they knowingly (or even unknowingly) provide services reserved for licensed Agents.

Music publishing offers artists a way to gain recognition and compensation for their work. Knowing your rights can make it easier to enter into a publishing agreement which can then help secure that deserved credit and desired remuneration.

In the music industry, protecting your rights can be a tricky process; however, doing so is essential for artists to achieve success. Music publishing rights include the rights to market, value and distribute your original, creative music. Essentially, music publishing consists of finding different uses for a song, such as including it in film, television or video games, and collecting money for these uses in the form of a licensing fee.

Songwriters typically own copyrights in the music and lyrics that make up their songs and earn money through license fees or royalties from their commercial use. If someone wishes to use a songwriter’s material, then he or she must obtain permission from the copyright owner in the form of a license; based on the type of agreement entered into, that copyright owner may no longer be the songwriter or artist.

Many songwriters agree to give up a portion of their publishing rights by entering into a contract with a music publisher. In giving up these rights, the musician usually gains publishing services and cash advances. The publishing company then proceeds to find uses for the songwriter’s music and takes on an administrative role, protecting copyright, licensing songs to record companies, and collecting royalties on behalf of the songwriter.

Agreements entered into by the publisher and the artist can take several different forms. A co-publishing agreement is when the songwriter and the songwriter’s publisher jointly own the copyrights in the song. Alternatively, in a songwriter agreement, the songwriter agrees to transfer all of the copyrights to the publisher. Finally, administration agreements are those in which the songwriter retains the copyrights in his or her song, and the publisher administers the copyrights for the songwriter for a specified amount of time, while receiving an administration fee in return for its services.

If a songwriter is offered a publishing contract, he or she should consult with an entertainment lawyer to help review the proposed agreement, explain its terms, and work with the publisher to achieve the best possible deal for the artist.

Whether you are trying to obtain music or get it licensed for an artist, you should seek the advice of an experienced music publishing contract attorney who will make sure the contracts are proper and both parties follow the relevant laws.