Try Your Hand - § 203 "Second Bite" Termination 1
The Hypothetical: Bill Thorne, a prominent electric bass player, was hired by Beetime Records to accompany famous rock star Amy Nova for a recording session on February 1, 1980. Part of that session was released as Nova’s now legendary SuperNova album. Just before the recording session began, Thorne signed an agreement stating that any works of authorship that he created during the session would be "works made for hire" as that term is defined in §101 of the Copyright Act of 1978, or in the alternative that he assigned the entire copyright in those works to Beetime Records. Looking back on it now, Thorne realized that he was paid very little to help make an album that went platinum and is still selling well. He heard about a copyright law provision that allows musicians like him to get a second chance to negotiate terms. He has asked you, his attorney, for your advice.
Question 1: Will Thorne or his successors ever qualify to take advantage of §203?
Answer: Most likely, Thorne or his successors will be able to take advantage of § 203. Note that the § 203 right does not apply to works made for hire -- from the perspective of the employer or commissioning party, this is probably the single most important advantage of having works classified as works made for hire -- so we need first to determine, by way of review, whether Thorne’s performances at the recording session were works made for hire. It is conceivable, but unlikely, that Thorne would be considered an employee of Beetime Records. You would want to ask Thorne for additional facts about his relationship with Beetime Records that would correspond to the factors mentioned by the Supreme Court in the CCNV v. Reid case. For example, was Thorne hired just for this session? Did Beetime pay employment taxes for him, and/or provide employee benefits such as medical insurance?
If Thorne is not an employee, does the work he created fall under one of the categories of specially commissioned works for hire that are allowed in part (2) of the § 101 definition? Probably not. The only argument available to Beetime Records is that the SuperNova album was a "compilation" because it contained more than one song. If the songs were all recorded at the same session with the same musicians, however, that’s a stretch.
If Thorne wasn’t an employee and his performances don’t qualify under one of the specially commissioned categories, then the agreement he signed is ineffective. His works are not works for hire, and since his assignment was made on or after January 1, 1978, the assignment qualifies for the §203 "second bite" termination of transfer right.
|
|