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Paradoxes of work for hire

By Rebecca Tushnet

Matt Stahl, Recording Artists, Work for Hire, Employment, and Appropriation

abstract:

Authorship and ownership exist in a curious relation in U.S. copyright law. In theory and common sense, authorship underwrites and is the condition of ownership, but in practice ownership can establish authorship retroactively. Distinctions between proprietary and non-proprietary creative cultural workers, in this view, turn in no essential way on evidence of ?creativity? or the investment of ?personality? in cultural creation. This paper examines a legislative struggle between recording artists and the recording industry over the status of their stock-in-trade, sound recordings. In 2000, recording artists obtained the repeal of a 1999 law allocating authorship and ownership of recordings to their record company contractors through the former?s assertions not of authorship in the commonsense understanding, but through the artists? legal ability to alienate their employed backup musicians, engineers and other creative personnel. Analyzing this struggle against the backdrop of a historical/theoretical consideration of the dynamics of domination and dispossession naturalized in the employment relationship, I show how the political-economic organization of creative production in the cultural industries depends crucially on and further naturalizes this legal ?furniture of the social world? (Ellerman, 1992), as much or more than it does on immanent aspects of cultural products or production processes.

The analysis moves whipsaw-fast from general employment law at the beginning of the 20th century to recording artists' practices at the beginning of the 21st, and could have benefited from more detail on music industry practice, but it's the first detailed treatment I've seen of the paradoxical claims that featured artists have to make about authorship in order to insist that the other participants in their recordings aren't authors, but they are, and that sound recordings are works for hire with respect to non-featured artists but aren't with respect to featured artists.

Full post as published by 43(B)log on November 14, 2008 (boomark / email).