“Mark,” she began, “if I were to pay a company to make a custom music box that plays a lullaby that I wrote, do I need to be worried about the company stealing my work?”
“I think a good general rule is that you shouldn’t do business with people you don’t trust,” I said.
“I know, but I don’t really know people in the music box manufacturer scene.”
“Just register the copyright! It would cost you $35 or $55 if you register as a business. It’s supposed to be made accessible for non-attorneys to do. The alternative of registering your copyright after it’s been taken is not very effective because you don’t get statutory damages or attorney’s fees if someone infringes before registration. But if you register your copyright before the work is infringed, a court can award statutory damages and attorney’s fees. That’s the cudgel that inspires compliance.”
Granted, my client’s idea to write a custom lullaby is pretty cool — but the more interesting hypothetical is if she decided to pay someone else to come up with an original melody for the music box. Then, the law gets a little more complicated.
That’s partly because people tend to think that there is something magical about the act of paying an artist for their work. In reality, it does not automatically bestow any rights on the purchaser unless it is stated in an assignment or a work-made-for-hire agreement.
- Work-made-for-hire is a doctrine that applies when the person who created the art is an employee; and so, as an employee, everything that’s produced is “for hire” and owned by the employer. For registration purposes, the employer is the “author” of the work.
- As a back-up, an intellectual property assignment often states that if the work doesn’t qualify, technically, as a work-made-for-hire (because the creator is not an employee, or the work is not within the narrow definition of what can be “specially commissioned”), the creator grants all rights in the specified work to the person or company paying him or her.
- Note that it’s essential to specify the works that are being transferred by assignment, whether by name or photograph, ideally with the list of specified works initialed or signed by the artist/composer/content provider. Otherwise, it may be deemed an unenforceable “assignment in blank.”
While registering your copyright is supposedly made to be done without an attorney, people often enlist the aid of an intellectual property law practitioner to make sure it’s done right. Certainly, entering into a work-made-for-hire arrangement or a copyright assignment deserves the attention of an attorney. “Don’t try this at home.”
Mark S. Kaufman
Kaufman & Kahn
747 Third Avenue
New York, NY 10017
Tel. (212) 293-5556
Fax. (212) 355-5009