Labor and employment issues are frequently triggered in the entertainment space, particularly in California. Some of these issues are well-known by practitioners in both areas of practice, while others can be a bit more obscure. This article addresses one important area of overlap that is often the source of confusion for practitioners and their clients alike who, unbeknownst to them, have created employment relationships with their commissioned independent contractors, simply by including standard, boilerplate copyright language in their contracts.
Under U.S. Copyright Law, only the author of a work can rightfully claim the copyright in that work. Obviously, when you have a number of “authors” contributing to a creative work – which happens frequently in music, film, television, etc. – joint authorship in that work can become problematic if not impossible to manage.
As a result, the Copyright Act created what is known as a “work made for hire,” i.e., a work prepared by an employee within the scope of his or her employment, OR a particular type of work specially ordered or commissioned for use, where expressly agreed upon in writing. In such instances, the employer or person commissioning the work is considered the “author” of the work.
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