Employee’s Copyright

The basic position discussed in Owning Copyright changes when it comes to employee’s copyright.

Commissioned Works.

Firstly, although we do not need to consider this in detail, it is appropriate to dispel a common myth concerning works created on commission. There is often confusion, in particular, in relation to musical works in this regard. Remember though, this is a different situation from the employee position, because when a work is created on commission, there is a independent contractor who is going to create the work, not an employee.

Let’s say the Royal Family wants an organ toccata to commemorate 65 years of Queen Elizabeth’s reign, in 2017. So they ‘commission’ a composer to write the toccata. Or it could be a poem – which is what the Poet Laureate is for. Or it might be that you ‘commission’ the local professional photographer to take some family portraits. The person who does the commissioning (the ‘commissioner’) pays for the work to be created – although he does not have any say in the creation – and the work is created in consequence of the commission.

The common misconception is that the commissioner is the owner of the copyright that results. It is not the case with musical works, although it does apply to media such as cinematographic films, photographs and sound recordings. Pertinently, for our purposes and the interests of BandBay readers, this rule does not apply to musical compositions. If you create a musical work you own the copyright – except if you are an employee and your job is to compose! So, now let’s look at the employee position.

Employee’s Works.

Sometimes, this is not always clear and a number of court cases have concerned the question of who owns the copyright when a work is created by an employee.

Here, we are not talking about the situation where a contract between employer and employee incorporates provisions regarding these rights. It is, rather, when there is no contractual provisions that things are sometimes uncertain.

Default position: if the musical work is created in the course of employment, then the employer owns the copyright.

So the question then becomes: when is it in the course of your employment?  Sometimes, that is easy to answer. Say you are a songwriter employed by a music publisher. In other words, your job is to compose. (You could be employed by anyone, a famous star even – it doesn’t really matter.) If you compose the musical work in the course of your employment, even though you are the composer, your employer owns the copyright (unless you have varied the position by a contract).

Other times, it is not so clear. First, are you actually ’employed’?  When reference is made to ’employment’, in this context,  it means just that: you are an employee, with a desk, working hours, leave conditions, a salary, pension benefits or whatever may be the case. This situation does not cover the independent freelance type scenario – then, we are just talking about a commission, as we have discussed above. (But, even then, be careful to read the small print in the commission mandate!)

Next, did you create the work in the course of your employment? Say you are an aerodynamicist working for the Mercedes F1 engineering team. You also happen to be a DJ – it’s your hobby. One night, after supper, you sit down at the computer and come up with an awesomely beautiful mix. Can that be said to be in the course of your employment? Clearly not.

On the other hand, you might be a computer programmer. After hours, you write a program that makes your job at the office more efficient. The chances are your employer will own the copyright, because it was in the ‘course and scope’ of your employment.  It is not always feasible, though it is preferable, to have a contract with whoever it is you are working for – or, whoever it is working for you – setting out in clear terms what the position is.

Contract

This contract will, generally speaking, be one of two sorts.

  1. In your employment contract you stipulate that the employer company relinquishes any statutory right to the ownership of the work(s) composed by you such as it may have, and bestows it upon you. (In effect, this is an assignment.)
  2. Or, you enter into a self-standing assignment which can either cover each separate composition, or all your compositions whether in the past or in the future.

Remember that a contract is designed to record an agreement between two or more parties, and there is no real limitation on what the parties can agree.

Conclusion

The problem comes in, often, because people don’t know their employee rights. Generally, the potential employer company does know the law, so the ‘small man’ is at a disadvantage from the start. There is no law which says that you cannot get advice on your rights before you enter into an agreement, whatever its nature.

If you are unsure of the consequences of what you are signing into, then the best advice BandBay can offer is to get advice!