The ruling in this suit is about a month old. But, I wanted to bring it to your attention in case you missed it. Also, let me highlight the “Work Made for Hire” part that it appears the court bought into which resulted in the Marley family losing.
“(Reuters) Bob Marley’s family lost a lawsuit seeking the copyrights to several of the late Jamaican reggae singer’s best-known recordings.
U.S. District Judge Denise Cote in Manhattan said the UMG Recordings unit of Vivendi SA’s Universal Music Group is the rightful owner of copyrights to five albums that Marley had recorded between 1973 and 1977 for Island Records.
The albums “Catch a Fire,” “Burnin’,” “Natty Dread,” “Rastaman Vibrations” and “Exodus” were recorded with Marley’s band The Wailers. They include some of Marley’s best-known songs, including “Get Up, Stand Up,” “I Shot the Sheriff,” “No Woman, No Cry” and “One Love.”
Marley died of cancer in 1981 at age 36.
Friday night’s ruling is a defeat for Marley’s widow Rita and nine children who had sought to recover millions of dollars in damages over UMG’s effort to “exploit” what they called “the quintessential Bob Marley sound recordings.”
L. Peter Parcher and Peter Shukat, who are lawyers for the family, did not immediately return calls seeking comment. UMG spokesman Peter LoFrumento said the company is pleased with Cote’s ruling.
Marley’s family accused UMG of intentionally withholding royalties from their company Fifty-Six Hope Road Music Ltd, and ignoring a 1995 agreement assigning them rights under the original recording agreements, court papers show.
It also accused UMG of failing as required to consult with them on key licensing decisions, including the use of Marley’s music as “ringtones” on AT&T, Sprint and T-Mobile phones, the papers show.
But Cote concluded that Marley’s recordings were “works made for hire” as defined under U.S. copyright law, entitling UMG to be designated the owner of those recordings, for both the initial 28-year copyright terms and for renewals.
“Each of the agreements provided that the sound recordings were the ‘absolute property’ of Island,” Cote wrote. “Whether Marley would have recorded his music even if he had not entered the recording agreements with Island is beside the point.”
She added that it was irrelevant that Marley might have maintained artistic control over the recording process. What mattered, she said, was that Island had a contractual “right” to accept or reject what he produced.
Cote also denied the Marley family’s request for a ruling upholding its claims over digital downloads, citing ambiguity in a 1992 royalties agreement.
She directed the parties to enter court-supervised settlement talks, and scheduled an October 29 conference.
The case is Fifth-Six Hope Road Music Ltd v. UMG Recordings Inc, U.S. District Court, Southern District of New York, No. 08-06143.
(Reporting by Jonathan Stempel in New York; Editing by Derek Caney)”
Ms. Uduak Legal Commentary
What is ‘Work Made for Hire?’
In Copyright law, there is an interesting legal theory called ‘Work Made for Hire.’ Essentially, it boils down to this:
1. If you work for me as my employee, the work that I hired you to do is not yours. It belongs to me and my company. Creating the work is part of your job and within the “scope of your employment.” That work is ‘Work Made for Hire.’
Under the music scenario, can a musician be said to be an employee of a label? Arguably no. Why? Because Copyright law says for you to be an employee, an employer has to pay your social security taxes and provide employee benefits. Labels do not pay social security taxes nor provide employee benefits to artists. Artists get an advance fee that they have to repay, and are responsible for using that advance to independently produce their albums. They control the hours, the studio they choose to record at, and when all is said and done, they submit their music to the label and the label decides what they like or not like. This is definitely not an employee under copyright law.
This means the battle above most likely centered on the second kind of work-made for hire which is also known as “work-for- hire.
2. A second scenario under work made for hire is, if my magazine, Ladybrille, hires a photographer to shoot a photoshoot for one of our editions. Under the Copyright Act, Ladybrille Magazine is “specially requesting” or “commissioning” the photographer’s work. In that instance we sign a legal agreement and I make it clear that the work the photographer will do, is a work made for hire.
Under Federal copyright law, the commissioned work the photographer does for Ladybrille Magazine may be a work made for hire only if we:
- both sign a work-for-hire agreement, and
- the work is one of the nine types of works that may be considered work made for hire by non-employees.
I am not getting into the nine types of works for brevity sake and focusing on the facts before me. So, let’s go back and look at the facts in the scenario above. The Judge says that a ‘work made for hire’ agreement was signed and “each of the agreements provided that the sound recordings were the ‘absolute property’ of Island.” Under this scenario, UMG essentially commissioned work by The Wailers and the agreement made it clear UMG music was the “absolute property” of Island records. For the judge, it is a clear case because under the work made for hire agreement, UMG did what it was suppose to do and all parties agreed when they signed the dotted line.
There are many complex nuances in Copyright Law. If you have a situation like this, you should hire an attorney to represent your interests.
Fashionentlaw™ is the brainchild of Uduak Oduok (Ms. Uduak), an ex-fashion model and industry veteran turned Fashion and Entertainment lawyer. The law blog discusses hot topics in pop culture arising primarily out of the fashion industry.
As a legal practitioner, Ms. Uduak has over two decades of experience counseling individuals and businesses within and outside the creative community. She has counseled designers, apparel manufacturers, models, photographers, retailers, graphic designers, musicians, public relations specialists, and athletes, among others, on diverse legal issues including business formation, licensing, trademark and copyright matters, contracts, intellectual property and contract disputes. She is also an Adjunct Professor.
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