Music Rights in Audio-Visual Works (part 2)
Filmmakers who would like to create an original score for their films often engage the services of a composer to write, compose, arrange, perform and produce the master recording of the score.
One of the main issues, amongst others, that will have to be determined is who owns the copyright in the music. Another important point that needs to be determined is the deemed “author” of the music for copyright purposes.
Under Canadian copyright law, in the case where a filmmaker hires the composer as an employee of their business, then unless stated otherwise in a written agreement, the employer (i.e. the filmmaker) will be the first copyright owner of the music. In the case where the composer is hired as an independent contractor of the parties business, then the composer will be presumed to be the first copyright owner of the music and then will have to grant, assign, transfer or license the rights in the music to the filmmaker in a written agreement. In Canada, whether the composer is being hired as an employee or an independent contractor, the deemed author for copyright purposes is the composer.
U.S. copyright law differs from Canadian copyright law in an important way in that in the U.S., the “work made for hire” doctrine applies to:
(i) works prepared by an employee within the scope or his or her employment; or
(ii) a work specially ordered or commissioned for use as a part of a motion picture or other audiovisual work if the parties expressly agree in writing signed by them that the work shall be considered a work made for hire.
The key point is that, unless stated otherwise in a written agreement, the “author” under a work made for hire is the employer or the person for whom the work was prepared. This makes a difference in not only how the copyright registration forms are filled out in the U.S. and Canadian copyright offices, but it can also affect how a filmmaker or composer may enforce his or her rights in the music.
This article was written by Jindra Rajwans, a business and entertainment lawyer based in Toronto, Canada. The information in this article is not intended to be legal advice and is of a general nature. Consult a lawyer for advice for any specific situation.