802.8 (E) Work Made for Hire Authorship
A musical work may be considered a work made for hire if the work was (I) prepared by an employee within the scope of his or her employment, or (ii) was specially ordered for a particular use with an express written agreement signed by both parties that the work is a work made for hire. See 17 U.S.C. § 101 (identifying particular uses for which a specially ordered or commissioned work may be considered a work made for hire).
If the application states that a musical work was a work made for hire, the registration specialist may communicate with the applicant to determine whether the musical work truly falls within the statutory definition. Since musical works are not one of the categories listed under part two of the work made for hire definition set forth in § 101 of the Copyright Act, a musical work must fall under part one of the definition or one of the particular uses identified under part two of the statutory definition to be considered a work made for hire.
• The applicant names Joe Smith as author of lyrics and music, answers “yes” to the “work made for hire” question, and states that Joe wrote the lyrics and paid a friend to write the music. The registration specialist may communicate with the applicant and provide information on works made for hire, because it appears unlikely (I) that Joe’s friend was employed by Joe and created the music within the scope of his employment, (ii) that the music was specially commissioned in a signed, written agreement, or (iii) that the music falls within one of the nine categories that may be specially ordered or commissioned as a work made for hire.
• The applicant submits an album containing dozens of short, copyrightable musical selections that are intended to be licensed as television cues. The applicant names TV Production Music, LLC as the author of the music, states that the work is made for hire, and states that the company owns the copyright in both the music and the album as a whole. It is possible that the company’s employees compose television production music. In the alternative, it is possible that the music was specially ordered or commissioned for use as part of a motion picture or as a contribution to a collective work. The registration specialist will register the claim with an annotation, such as: “Basis for registration: Collective work.”
For a full discussion of work made for hire authorship, see Chapter 500, Section 506.