Yours, Mine, and Ours: The Joint Authorship Conundrum for Sound Recordings

In 2013, authors of sound recordings will have their first opportunity to exercise their right to terminate assignments made to record companies. Congress has yet to settle just who may claim authorship in, and thus the right to terminate assignments of, sound recordings. Record companies have responded to this uncertainty by including language in standard recording contracts purporting to declare sound recordings made under the contracts works made for hire, such that authorship would vest initially in the record companies themselves. If sound recordings fit within the scope of a work made for hire, these recording contracts would seal the deal that the record company is the author for copyright purposes. However, many judicial and scholarly opinions seem to establish that sound recordings do not qualify as works made for hire. Once again, record companies have anticipated this problem by also including standard contract language that alternatively assigns the rights in the sound recordings to the record companies. As artists attempt to terminate or renegotiate those assignments in a few years, courts will be flooded with litigation to determine the scope of authorship, work-for-hire status, and termination rights in sound recordings. The fact that authorship in sound recordings, if not works made for hire, is still uncertain only exacerbates the problem. Thus, perhaps the more pressing issue, since the majority of affected parties seem to agree that sound recordings are not works made for hire, is which artists involved in the creation of a sound recording will be considered authors for copyright purposes