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Details and Dollars

By Dan Kimpel

If under U.S. copyright law , ownership of music is the fundamental right of the creator, what then is a “Work for Hire?” According to the U.S. Copyright law, A Work Made for Hire (commonly called a “Work for Hire” or “WFH”) is an exception to the rule that the creator owns the copyright. As defined by the language of the United States Copyright Act of 1976: “Works Made for Hire. -- (1) a work prepared by an employee within the scope of his or her employment; or (2) 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 instructional text, as a test, as answer material for a test, or as an atlas, if the parties expressly agree in a written instrument signed by them that the work shall be considered a work made for hire.“

Leading Los Angeles entertainment attorney Steve Winogradsky explains the specifics. “The common misconception in the production community is that a WFH means a buyout of all royalties. And sometimes it’s modified where the writer will be allowed to collect his or her performing rights income, and that would be in the contract. But it doesn’t always mean the writer will get other kinds of third party income: licensing, mechanical income, soundtrack royalties, etc. The concept of work for hire equals a buyout is a misinterpretation of the law. WFH is a buyout of ownership, but not necessarily royalty streams.”

Dennis Lord, SESAC’s executive vice president uses the term “caveat emptor” (buyer beware) in referencing certain practices. “Some networks will use writers who do works for hire, and then return the right to the writer to collect their writer’s share. What they fail to tell the writer, and mislead through the language in their contract, is that they direct license to themselves. Ultimately, if the PRO does not get paid, then the PRO can’t pay the writer.”

“If they direct license, the producer, or the network, might agree to pay the writer their writer’s share,” Lord continues. “There is no unit of measurement – it’s what they say is fair and it’s often quite nominal.” Lord concludes that the writer has to confront the issue when negotiating the contract. “Performing Rights Organizations are ombudsmen – we function in a way that ultimately protects the writers by giving them a mass voice. What we can do is raise awareness of the issues and the consequences. “

Winogradsky notes that he has addressed this significant factor on the SESAC website. “Composers have to know that there is always someone out there who will do it for less money and under worse conditions. At the end of the day it’s the composer’s responsibility to themselves whether or not they want to take a deal -- even if it’s a bad deal.”

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