For proprietors of copyright interests, the “author’s” right to terminate an assignment under §203 of the Copyright Act of 1976 (the Copyright Act) has created a hotbed of uncertainty with respect to whether or not certain works constitute works for hire to which the right of termination does not apply. Under the Copyright Act, the status of obscure categories of commissioned works, such as atlases (yes, atlases), instructional texts, tests and answer materials for tests, as works for hire is clear. As 2013 approaches, however, and with it, the first-time application of the termination provisions of the Copyright Act, no one is commenting on the potential boon for the “atlas” industry or tensions swirling around the status of those who prepare “answer material for a test."
Rather, the focus of interested observers has been on the cool kids in the class: rock stars like the Eagles, Billy Joel and Funkadelic, among others. Indeed the shortcomings of the Copyright Act in its present form are perhaps best illustrated by the notorious omission of “sound recordings” from the list of commissioned works that may constitute a work for hire. The sex appeal of the music industry, however, has exposed the issues and consequences of the exercise of termination rights and the importance of whether certain independently commissioned works qualify as works for hire. The implications of Congress’ short-sighted definition of a “work made for hire,” however, stand to be more far reaching; assuredly sound recordings are not the only type of works for hire not specifically enumerated in §101 of the Copyright Act that would likely qualify as works made for hire.
Pryor Cashman Litigation Partner Lisa Buckley and Associate Erich Carey have written an informative article on this subject entitled “Sounds Like a Broken Record.”
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