Joint Authorship, Works-for-Hire, and the Idea/Expression Distinction: The collision of law and practice in popular music recording
Tom Porcello – Vassar College USA

ABSTRACT: This paper examines some of the specific provisions in the US Copyright Law that hinder ascribing joint authorship (and therefore authors’ rights) and performance rights to all parties—performers, producers, songwriters, engineers—in contemporary popular music practices. Taking as its starting point studio practices that might be described as “composition-in-recording,” two areas of US copyright law are considered. The first concerns the particularly strong role of the “work for hire doctrine,” which in effect has the power to appropriate the creative output of individuals, as well as a specific provision in the definition of joint authorship—that the contributions of each author must be independently copyrightable for a work to be considered jointly authored. These two provisions, it is argued, disproportionately hinder broad attribution of authorship in music production. Second, the paper examines the uncomfortable tension between the idea/expression distinction that undergirds US copyright law on the one hand, and the composition/performance distinction that provides different legal rights to composers and performers of musical recordings. Here it is argued that “composition-in-recording” considerably problematizes the validity of assigning different rights to “composers” and “performers” (which is further problematized by the narrow, quotidian definition of what acts constitute studio “performance”). The paper concludes by suggesting some specific changes to the US Copyright Law that could better bring into alignment studio practice and a broader ascription of authorship, as well as some justifications within legal theory for doing so.

Tom’s presentation covers an area that is related to mine – that is, we’re both interested in the relationship between the creative process in popular music recording and the law that governs ownership. Copyright protects ‘expressions of an idea’ rather than an idea itself.
Tom quotes US Code 120(b) to make a distinction between the idea and the expression of the idea;
In no case does copyright protection for an original work of authorship extend to any idea, procedure, process, system, method of operation, concept, principle, or discovery, regardless of the form in which it is described, explained, illustrated, or embodied in such work.
He discusses the song/track distinction, and refers to the following definition of a musical work:

Music refers to the melody, rhythm and harmony of a musical composition. It is important to note the difference between music (that is, the musical lines in a musical composition) and a sound recording (that is, the actual sounds of the musical work fixed in recorded form, for example, on a CD or digitally in an mp3 file).

Tom also cites Fisher 2014 and the emerging standard of originality in the EU. We now return to the USC which defines copyright protection as:

Copyright protection subsists, in accordance with this title, in original works of authorship fixed in any tangible medium of expression, now known or later developed, from which they can be perceived, reproduced, or otherwise communicated.

Copyright in a work protected under this title vests initially in the author or authors of the work.
Tom makes the point that music is often reduced to (copyright protection for) that which can be transcribed, and observes how this distinction is not one that would be recognised by many music creators, being artificially reductive.
Music copyright law (USA) defines three categories of collaborative creativity, and the paper discusses these in real-world music industry terms:

  1. Contributions to a collective work
    (e.g. contributing a chapter to an anthology)
  2. Work for hire
    (creating something as part of your contract of employment) – where the employer owns all of the rights
    There is a negotiation to be had between individuals and their employers, often connected with whether the work was directly related to their job. This is all related to the definition of ‘employee’ – whether as a salaried individual or as a contractor – and individuals can argue the case to protect their ownership.
  3. Jointly authored works
    We look at the definition of joint authorship claims, and sound engineers are discussed. The creative activities in music production are compared with the height of the bar for joint authorship definitions, and he notes that this is largely for administrative convenience. There is an economic and administrative incentive for industry to keep copyright in the hands of individuals (because joint authorship is difficult to negotiate and administrate). The imprint of Romanticism (the ‘creative genius’) is a cultural factor that mitigates against joint authorship attribution.

Tom concludes by calling for a re-thinking of the definition of joint authorship, or perhaps a new category called ‘collective authorship’. The deck is stacked against sound engineers. Reducing music to melody, harmony and rhythm is not an effective way of rewarding creative labour in music. We need structures that secure the rights of all parties.