FOR COMPOSERS - Part 3: The Elephant In The Room
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FOR COMPOSERS - Part 3: The Elephant In The Room
Continuing my essay on what media composers should be doing to better strengthen our leverage and position in the industry, let me first say if you have not read parts 1 & 2 in my blog below….you should go do that now first.
OK…NOW….the Elephant in the room. The thing we composers really need to put most of our efforts toward.
3. Work-For-Hire law needs to be amended.
This is without a doubt our biggest area of focus that needs to be an all-hands-on-deck effort. I see this requiring a big, multi-year, legislative lobbying effort by multiple groups representing composer’s interests. I will be doing my best to talk with individuals at the SCL, NARAS, BMI, ASCAP and all the other organization who will have me come by.
There are two types of work-for-hire agreements. An employee agreement is one type of work-for-hire agreement. Everyone working at Apple for example…their employee contract is essentially a work-for-hire agreement and everything they create for their employer is owned by Apple. That one we all agree on and makes sense. The second type of work-for-hire agreement is a NON-EMPLOYEE work-for-hire agreement. The problem with this second non-employee work-for-hire is that it takes away the one piece of leverage we inherently have as IP creators (ownership of the copyright the instant it is created and affixed to a medium)…and instead gives authorship and ownership to the one commissioning the work BUT (here is the caveat) it does NOT change that composer’s independent contractor status with the NLRB. I will say that again…It takes over ownership similar to the relationship of an employee to an employer….but does not actually redefine us AS an employee because the law as it currently stands allows anyone to willingly sign that ownership asset away in a contract by choice. That is the disconnect for me. I would like to see it be one scenario or the other.
My pie-in-the-sky wish is that legislatively in the USA, copyright ownership of CREATIVE works can NOT be signed away in a “non-employee" work-for-hire agreement. We again use a copyright lobbying approach to strengthen copyright creator’s authorship / ownership rights. But that is probably a tough pill to swallow all at once and will be a hard argument to succeed in. Those who commission creatives using WFH agreements use this for a reason. It gives them everything they want but shirks their employer responsibilities in labor law. But when you look at labor law and the writing of Work-For-Hire legislation…the language that allows this ownership transfer for a non-employee person commissioned to create the work is written as an EXEMPTION for audiovisual works created for the entertainment industry. You heard me correctly. It is an exemption from the WFH intent. What does that tell me? It tells me that the powerful entertainment industry lobbied in the past to allow this NON-EMPLOYEE ownership transfer in a WFH agreement in “audiovisual works.”
Look at this example. This is an actual example given by the copyright office in Chapter 500, section 506.2 of how work-for-hire law treats ownership of a work by a “non-employee.”
“WMFH-FM asked Aaron Washington to create a jingle for the station. The station told Aaron that the jingle should be thirty seconds long and that it should include the sound of a helicopter. Aaron wrote the jingle at home using his own equipment and he did most of his work in the middle of the night. Aaron was paid a flat fee for this assignment. The jingle is not a work made for hire because Aaron was not an employee of WMFH. In the application to register this jingle, Aaron should be named as the author and the work made for hire box should be checked “no.”
Does that not describe practically everything we media composers do? Yes! It does…except for one aspect. We turn right around and WILLINGLY sign away that ownership / authorship and transfer it to the production company in our contract agreements without being an actual employee. Take comfort in the fact that inherently…what we create is already recognized as NOT a WFH and that WE are the author as far as copyright law is concerned until we sign that authorship and ownership away. We just need to strengthen the language in the WFH legislation to ensure that we can NOT sign it away as a non-employee in the USA. As is the case in many other countries around the world. The USA is actually the outlier here.
Is there a middle ground?
First… my proposition is IF someone is working on a WFH agreement, then that should be defined to actually change the relationship of the individual to be an employee in all aspects with all employee protections. There should be no “NON-EMPLOYEE” work-for-hire for creative works. That would take a lot to hash out and define. But that is the crux. This is the one area where the unions out there and the AFL-CIO would/should likely support and help us lobby for such a language change. Because it further helps create scenarios that define more people as employees. Said in another way, you can not transfer copyright ownership on a commissioned work using a “non-employee” WFH agreement. You must make the individual your employee to own the creative work. Thus in that specific scenario it would indirectly change the NLRB classification of composers from independent contractors to employees because the studios would have to officially hire composers as employees to own the work. Thus if the studios still wanted to keep using WFH agreements to transfer ownership of creative content…they would have to use that first type of WFH agreement which hires and pays the people as W2 employees. And who is eligible to unionize again? ONLY Employees!
But then that opens up the scenario that Elmer et al were arguing to fix again does it not? As employees, you do not own or control the works you create. You are not the author of the work. The employer is. I predict this would like create a scenario where the studios would then put themselves on the cue sheets as author and publisher and composers in that scenario would suddenly find themselves losing PRO payments. Unless the PRO’s got involved to help stop that. But that is a long term problem to work out. We would then be back full circle as this issue being a “labor dispute” where composers (who are then employees) could unionize and then negotiate those terms with their production company employers as employees under labor negotiations.
On the flip side…if the studios did NOT want to deal with a composer union (which frankly I don’t believe they want to) and instead wanted to keep paying us package fees where our little businesses take on the burden of producing and paying for all aspects of the creations of the commissioned work…their only option then would be to license the material from the composer, the package fee you get is the license fee negotiated, and the copyright ownership of the music would stay with the composer creator. That composer would have more leverage in negotiating in its licensing terms the fee and the usage. The production companies would likely want exclusive licenses…and we could give them that by choice….but then make them pay for that in the licensing terms no different than any songwriter or record label would negotiate today.
I would predict that the smaller indie films, games and productions would fall in line with this licensing path because it is easier for them in the long run. A production company doesn’t need to own that Lady Gaga song to have it in their film, they just need to have a license agreement that gives them the rights they need either in perpetuity or for a long period of time. And Lady Gaga due to her demand and popularity will negotiate a fee that reflects all of that. Same concept with the score. (NOTE: I fully acknowledge I am over simplifying that overall process here as I am trying to focus on the big picture ideas for sake of getting my points across.) The big composers would likely negotiate larger fees because they can demand them as such…and the smaller up-and-coming composers would likely only be able to negotiate smaller fees. But being the copyright owners by default…they would collect twice as much PRO and could be in a position to negotiate larger fees to cover their expenses more like our song licensing counterparts.
Final Summary: If we can change work-for-hire law to NOT allow a “non-employee” WFH agreement to transfer copyright ownership and authorship….but only keep that option open to employee WFH agreements the decision of how to proceed goes back to the production companies and then composers will have more power and leverage. If production companies truly need to own it…then fine. Hire us as your employee where the employer ownership issue (as part of our regular course of work as their employee) is clear. If they don’t want to go through the expense and hassle of that, including likely union implications…then just simply license the commissioned music from the composer where the terms of that license fee is an up-front negotiation. The composer owns the music, owns the publishing, owns the copyright of the works and allows it to be used in the film per the terms negotiated.
Make sense?
All of the above issues discussed in Part 2 and 3 on this blog, if addressed legislatively, increase the leverage of ALL composers asserting our copyright rights. Media composers, classical composers, songwriters, etc…. None of the issues above need a union to magically happen for us to lobby our legislators. In fact…in one scenario above…I have laid out a pathway to possibly change union eligibility on SOME productions.
Composers in “Hollywood” traditionally have not been a very entrepreneurial bunch. Yet in the early 80s we found ourselves thrust into entrepreneurship whether we liked it or not. The ones who have figured out how to embrace that and build business models that take advantage of this entrepreneur mindset have gone on to be successful. I suspect they don’t want to change that. I wouldn’t. We have to allow them to continue to conduct their businesses as they have done. These people have come to understand they are not just composers. But are in a service industry running mini Post-Production facilities servicing clients. At the same time we should always be finding ways to give fellow composers and songwriters more leverage in protecting what we create and our current Work-for-hire law is a HUGE impediment to that. Let’s embrace that reality, lobby legislators to strengthen our position in copyright law AND in WFH language, and help give all composers and creative artists more leverage in owning the works they create.
