© 2003 Green &
Green
www.entertainmentlegal.com
13
State Bar
Of California
Annual
Meeting
2003
Hottest
Issues
In
Cyberspace
Law
Standing
to Sue: Ownership-Work
Made for Hire
•Do MGM, RIAA and other media giants have standing to sue?
•WMFH defined in the current law 17 U.S.C. § 101
–“Work for Hire”
applies only under 2 circumstances, only if:
•Artists are Employees of the Record Companies (applying traditional common law tests of employment) or
•If Independent
contractors, if work specially ordered or commissioned, AND by written contract, AND only for certain categories, BUT SR are not in the WMFH
categories
–One Major Defense Issue
raised in “Napster” was whether the Record
Cos. could rightfully claim SRs as “work made for hire” or whether the recording artists have claim to
their work:
–Recent
Development:
•The RIAA lobbied for 1999 so-called “technical correction” amendment to include SRs as a WMFH
category, but when caught;
repealed retroactively in 2000, w/specific provision “that neither the amendment nor its
deletion can be given any
legal significance.” = must prove OWNERSHIP
•(Best
practice: in agreements make it “WMFH”
and ©
ASSIGNMENT)