thanks. so basically what you posted backs what i was saying, LOL.

There was no employer/employee relationship, so they would not prevail on the work for hire issue. If, however, they approached him outside of his contract for say the Batman album, can you bet there is something in writing stating it was a work for hire.

txladykat said:

Yeah... I agree he has a good case


But it IS tricky....

(from the bit of the copyright office)

These factors are NOT exhaustive. -> courts still have room and liberty to judge a relationship between an artist and record company as "employer-employee" even tho' it doesn't really fit into those criteria.

AND:

The closer an employment relationship comes to regular,
salaried employment, the more likely it is that a work created
within the scope of that employment would be a work
made for hire.

I think, that ultimately it can't be said for sure how it will be judged. It depends on each specific album, contract and circumstances.

I think he has the best case with his early records BUT it remains an open question whether or not Prince can never be considered to be an employee.

From other (lower) jurisprudence you can derive a certain line by courts that the less professional, experienced and wealthy an artist/author is, the more the court will be in favor of the artist and vice versa.

So, if for example his famous 1992 - 100 million dollar contract was also one of works for hire, it may get tricky because if I remember correctly Prince was also offered to become a member of the board of directors of Time Warner and he basically got paid a salary of millions a year in advances. Who knows, they paid his health insurance too. Better yet, judging from Prince's complaints they tried to determine what he should and should not release too. (Good thing he tried to get rid off that shit asap!)

AND what about Purple Rain? It's part of a motion picture, which unlike a sound recording is eligible for a work for hire if commisioned that way, a treasure for WB and if commisioned as a work for hire, it looks like it might be a legitimate one like Batman...or what about Graffiti Bridge??


And also..., watch them try and include the term "sound recording" into the statutory definition of works for hire again.
[Edited 4/25/07 16:18pm]
[Edited 4/25/07 16:26pm]

btw txladykat

did you know all his recordings are registered with the US Copyright office as works made for hire?
[Edited 4/25/07 16:14pm]

Plus if Prince could not be considered an employee, what about his band members?

See where I am going with this?

WB could drag this issue for a long time into a lengthy and costly legal battle and others (former band members) may start to throw around claims too.

It could get real messy, so they would be better off making a reasonable deal.
[Edited 4/25/07 16:16pm]

Tremolina said:

I love when people can debate without getting testy or feeling personal attacked! LOL. Thanks for sharing with me.

So...to continue the debate. The band members most often don't own rights to the musical composition. Most times they are "performing" not creating the works, therefore the issue doesn't even come into play. However, for the times that they do contribute to the musical compositions, knowing that Prince has them sign confidentiality agreements, I am willing to be my bottom dollar they also sign an employment contract, which most assuredly states that their contributions are works for hire and therefore, Prince owns the copyrights.

On the topic of his compositions being registered as works for hire, where are you seeing that? I don't see that when searching his copyrights registered with the US Copyright Office on his musical compositions, except on the Batman Soundtrack as I pointed out previously.

Examples taken straight from the copyright office:

BATMAN SOUNDTRACK
Registration Number: PA-432-996
Title: Batdance : from the motion picture soundtrack album Batman / words and music by aPrince.
Imprint: Secaucus, N.J. : WB Music, c1989.
Description: 15 p.
Claimant: Controversy Music
Created: 1989
Published: 19Jul89
Registered: 14Aug89
Author on © Application: words & music: Warner Brothers Publishing, Inc., as employer for hire of aEthan Neuburg.
Claim Limit: NEW MATTER: "piano/vocal with guitar chords."
Special Codes: 3/M


I WANNA BE YOUR LOVER
Registration Number: PA-46-506
Title: My love is forever ; I wanna be your lover / Prince.
Imprint: mW B Records WBS 49050, c1979.
Description: 1 sound disc : 45 rpm ; 7 in.
Note: Produced, arr., composed & performed by Prince.
1st selection from the Warner Bros. album For you (BSK 3150);
2d selection from the Warner Bros. album Prince (BSK 3366)
Claimant: cEcnirp Music
Created: 1979
Published: 24Aug79
Registered: 5Oct79
Author on © Application: words & music: Prince Rogers Nelson a.k.a. Prince.
Special Codes: 37/M
Cross Reference: aPrince. SEE Prince Rogers Nelson.

Ashleynbuffalo said:

I'd say yes. 'Prince' is definitely a brand, in look, in sound, and fashion.

txladykat said:

No big deal. This is interesting stuff for me and I like to share and debate it, so thank you too.


Yes, that's true.

However, we are not talking about the copyrights to the musical compositions and lyrics here, aka "publishing rights". Prince owns most of his publishing rights via his publishing companies. No question about it.

But those copyrights need to be distinguished from the copyrights to the sound recordings / recorded performances of these songs and lyrics. Between WB records and and Prince (and his band members) it's solely about the copyrights to the sound recordings of the underlying songs and lyrics aka "the masters".

The sound recordings were created by the performer(s) (Prince or Prince and his band members) under contract with WB records. The burning question then is whether Prince or Prince and his band members created the WB sound recordings as employees (consequence: works made for hire) or as independend contractors (consequence: transfer of copyright for 'only' 35 years)




Yes it does. Because they helped create the sound recordings. Between WB records and Prince it's ONLY about the copyrights in the sound recordings (co-performed by his bands). By law, every performer in a sound recording in principle has a an ownership stake in the copyright of the sound recording he helped create, unless his contribution to the sound recording can be considered a work for hire / the performer can be considered an employee.



You are willing to bet that eh? I wouldn't because Prince has had several legal issues over co-writing songs with others in the 80's.

I don't think his band members were employed by him in the 80's. That might have changed tho' after he he got Paisely park records as recording studio and record company late 80's/early 90's. His band members then entered into contracts with Paisley park records.

The question whether his band members were employed by him is a VERY interesting matter when it relates to the sound recordings his band members helped create. The answer to it has a lot of ramnifications for how the disputes can or can't be solved.

Okay, you are willing to bet they were hired as employees by Prince and thus Prince owns the rights to all their contributions as works made for hire. My bet is, they were all hired by WB records, either as employees or as independed contractors, just like Prince was.

And then the question is the same as it is with Prince. Could the band be considered to have been "employees" of WB or Prince (work made for hire) or were they all independend contractors (transfer of rights for 35 years)?

If it's the latter then the band members could have just as much right to claim back the rights to their contributions after 35 years as Prince does! If they were not independed contractors but employees of either WB or Prince, it could make the matter even more complicated to solve.



But I have NEVER said that.
Prince owns the rights to his compositions and lyrics, no question - but not to his sound recordings. I am soleley talking the latter here.



What you dug up there is indeed about his publishing. Thus NOT the sound recording I am talking about.

Here you can see that claimant is Controversy Music which is Prince's second publishing company.

What is probably confusing you is the "Author on © Application: words & music: Warner Brothers Publishing, Inc., as employer for hire of aEthan Neuburg."
BUT that refers to "NEW MATTER" - the published song book with piano/vocal and guitar chords, which was written by a WB employee, NOT PRINCE. See also next line:
Claim Limit: NEW MATTER: "piano/vocal with guitar chords"

Warner doesn't own his publishing rights to the composition and lyrics of the Batman songs. They do own the rights to the published book with piano/vocal and guitar chords and most importantly the sound recording of the Batman album.
The burning question here again is whether Prince created the SOUND RECORDING as a work for hire or NOT.


Keywords here are:
Claimant:[/u] cEcnirp Music
Prince's first publishing company (Prince spelled backwards).

Author on © Application: words & music: Prince Rogers Nelson a.k.a. Prince.
Special Codes:37/M

This registration indicates Prince owns the publishing rights (words & music, special codes: 37/m) of I wanna be your lover, a separate issue of the copyright to the sound recording.
[Edited 4/30/07 6:13am]

Txladykat,

Please search the copyright's office records on title for Purple rain. Under the page with 44 hits you will find that Warner Bros records under # 22 registered itself as as employer for hire of the SOUND RECORDING of Purple rain, indicating that the sound recording of Purple rain is a work made for hire.

Do the same with for example Diamonds and pearls and you will get the same result.

Tip: check out the "Special Codes"section. It explains when a registration deals with the copyright in a sound recording or with publishing rights. The code U stands for sound recording. The code M for publishing rights.

HOWEVER!

Just because his (and theirs) recordings are REGISTERED as works made for hire, does NOT automatically make them so. While it IS an important INDICATION that they are works made for hire, the answer to that question depends not on the registration but on whether - under the circumstances at hand with each recording - Prince (and his band members) should be seen as employees or as independend contractors.

The factors that have to be considered then are those laid out by the Supreme Court in 1989 and further evolved in court cases. I presume, based soleley on what I know on this matter and about the working relationship between Prince and WB, that while it had some elements of an employer/employee relationship, it also has many elements characteristic of a contract with an independend musician.

I believe the answer ultimately depends on what a court makes of it. Because this matter is very important for WB and Prince, they are bound to make this a legal issue when Prince starts to claim back his rights. They will drag it and try to exhaust Prince financially. Then, if it gets real messy, former band members start making ownership claims too.
[Edited 4/30/07 6:41am]

I would have thought that the inclusion of so many sound samples (which WB surely owns outright) in nearly all the Batman tracks would lend WB a strong case for making a work for hire. Batdance makes no sense at all without dialogue sampled from WB's film, and arguably could not have been created without being part of the film project. In any case, the Batman album sound recording rights would be useless to Prince without the licence to use the samples in there however he wanted as well.

sean2003 said:

That those movie samples are owned by WB pictures is clear. Prince obviously got permission / a license to use the samples of the movie for the music.

But by writing a song and then recording a performance of the song with the underlying samples he has legally created "new works", independend of the copyrights of the movie samples.

Because the song, samples and recordings are separate works and copyrights, this aspect is not relevant to the question whether the recording is a work made for hire.

Relevant is only whether Prince created the recording of Batman as an independend contractor (transfer of rights for 35 years) or as an employee of WB records (work made for hire).

The first would mean that the transfer of copyrights of this sound recording to WB expires after 35 years when duly noted. The latter would mean that Prince could NEVER get these rights back unless WB sold them to him.

The question is relevant and burns because it is at the heart of the still unresolved contractual disputes between Prince and WB and the 35 year term claim by Prince could prove to be decisive in that dispute, as well could be the work for hire claim by WB.
[Edited 4/30/07 7:26am]

4. Registration Number: SR-107-374
Title: Batman : original motion picture score.
Description: 1 compact disc.
Note: No. 25977.
Claimant: acWarner Brothers Records, Inc.
Created: 1989

Published: 8Aug89

Registered: 19Sep89

Author on © Application: sound recording: Warner Brothers Records, Inc., employer for hire.
Claim Limit: NEW MATTER: "remixed from original source for new fixation."
Special Codes: 7/U/Q/2

The Webster definition of "entrepeneur" is one who organizes, manages, and assumes the risks of a business or enterprise. I'd say that anything that he does outside of his own music/performing/acting is entrepeneurship.

He's had:

• Paisley Park records
• Glam Slam nightclubs
• 1-800-New-Funk online store
• Brick-and-mortar NPG Store
• Get Wild fragrance
• NPG Dance Company
• NPG Music Club - a "fan" club that originally charged a membership fee, is a "business"
• 3121 Jazz Cuisine

Now, most of these projects have either failed or been abandoned, but they are still examples of entrepeneurship.

I hesitate to add the Love4OneAnother charity, which would've been nonprofit, but that was still a business idea that would've had employees. I believe that "nonprofit" means that after the bills are paid (salaries, utilities, supplies) everything else goes to charity. Do some research on that one. . .

trem.....i see your point now. we were talking about two separate things. you are talking specifically like the already recorded albums, not the actual musical composition/lyrics per se.

The burning question that neither of us can answer is exactly what did the contract contain? I imagine the earlier contracts of the 70's and 80's were different than the latter contracts of the 80's because in the beginning, Prince probably did as most new artists do, sign the basic contract just to get the deal.

Some contracts do contain the work for hire clause as follows:

Each Master Recording made under this agreement will be considered a "work made for hire" for Label within the meaning of U.S. Copyright Law. As between you and Label, those Master Recordings, from the inception of the recording thereof, and all Records and other reproductions made therefrom, together with the performances embodied therein and all copyrights therein and thereto throughout the Territory, and all renewals and extensions thereof, shall be entirely Label's property, free of any claims whatsoever by you or any other person, firm, or corporation. Nothing contained in the Agreement shall be understood to convey to Label the ownership of, or the right to publish or administer, the copyright in any musical composition embodied in any Master. Label shall, accordingly, have the exclusive right to obtain registration of copyright (and all renewals and extensions) in those Master Recordings, in Label's name, as the owner and author thereof. If Label shall be deemed not to be the author of those Master Recordings or those Master Recordings are deemed not to be "works-made-for-hire", this agreement shall constitute an irrevocable transfer to Label- of ownership of copyright (and all renewals and extensions) in those Master Recordings. Artist shall, upon Label's request, cause to be executed and delivered to Label transfers of ownership of copyright (and all renewals and extensions) in those Master Recordings and any other documents as Label may deem necessary or appropriate to vest in Label the rights granted to Label in this agreement, and Artist hereby irrevocably appoints Label its attorney-in-fact for the purpose of executing those transfers of ownership and other documents in Artist's name...

However, technically, there is no work for hire in sound recordings under copyright law. Lately there has been some controversy over whether sound recordings can be subject to WFH. The Work For Hire provision of the Copyright Act lists the types of works subject to WFH, and sound recordings are not among them. The situation is not yet resolved, so this provision is still subject to debate.

Even further, contracts also contain the following language so they don't fall under the federal labor laws:

It is understood and agreed that in entering into this agreement, and in rendering services pursuant thereto, you have, and shall have, the status of an independent contractor and nothing herein contained shall contemplate or constitute you as Label's employee or agent.

Neither of these clauses have yet to be tested in the judicial system, and I suspect at some point in time they will be. It shall be interesting to see the outcome.

It would also be interesting to see what "re-recording" provision was contained in his contract. Does it run from release date or end of contract date? How long is it for?

This has been a very interesting read and research. I just wish we really knew what he signed. The question of his masters gets asked on the board a lot. I would imagine his earlier contract probably contains the above-provisions, whereas the latter contract may not have.

If he signed the typical contract, then WB does own his masters as a work for hire. Although, as you stated, he can certainly fight that in court as it is a heavy dispute in the record industry that has not yet been determined by the courts. However, WB would only own the master recordings, as you pointed out, and he should be able to re-record his material if he so chooses, dependent on the re-recording clause of his contract.

So, in summary: If he signed the typical industry contract back in the early days, he owns the lyrics and musical compositions, but WB owns the masters recorded at the time, which he will never regain, unless he chooses to fight it out in court. However, since he owns the rights to the lyrics and musical compositions, if his re-recording time has expired, he is at liberty to re-record any of the material he so chooses. So...the question remains, did he sign this type of contract? Oh....to be a fly on the wall that day,

txladykat said:

Well txlady, this is certainly an interesting discussion.

Prince has talked a lot about re-recording his WB catalogue and judging by Prince's release of a re-recording of 1999 back in the same year, he is not bound to any such clause (anymore). Such a provision might have been in his publishing deal with Warner Chappel music, that expired in the same year. However, since this project totally flopped, Prince seems to have dropped the idea.

I am also pretty sure that his and his band's contracts with WB state a similar provision as you cited above, calling everything they produce a work made for hire and if it's legally determined not to be, then it's a transfer of copyright.

However, if it contains the other provision you quoted, that the artist in no way can be considered to be an employee of the record company under the contract, the contract itself makes sure the artist's recordings are not works made for hire. Because, as you noted correctly; sound recordings are NOT included in the works made for hire listed in the Copyright act as standard commissioned works for hire made by an independend contractor.

The only way to be sure the artist's recording or contribution to the recording really IS a work for hire, is to really EMPLOY the artist. Make sure every aspect of the relationship is similar to a standard employer-employee relationship. Often that is not that case, but you never know for sure what a judge may think of it and since the question whether such a relationship ever existed is open to much legal nitpicking, this can go really dirty.

If they don't come to an agreement it's likely to become a lengthy battle, in which any involved party can sue. Prince will do everything he can to gain control over his master recordings and WB will refuse to give him the rights unless they are able to enter into a deal by which WB still makes profits or are paid a hefty lump sum. It's also likely that some of his former band members will have a shot at an ownership stake, which could make matters very complicated.

Btw, the clause you cited really focuses on the recording being a work for hire. However, if it's not defined somewhere else in detail - the subsequent transfer of copyright isn't written very conclusive, especially if it deals with an unexperienced artist. The language is clear but if it wants to be fully sure any and all imaginable rights comprised under copyright are covered in the transfer, it's better to write down every possible means of reproduction and publication in the contract as rights comprised under the transfered copyright, including so-called "digital rights" and "future rights".

And THAT is a very interesting matter when it relates to the right to digitally remaster Prince's recordings... Oh yeah, if you could be a fly on the wall...
[Edited 5/3/07 12:15pm]

Tremolina said:

I didn't include all the language. What will be interesting is the "independent contractor" clause that tends to get thrown into these kinds of contracts. They try to say they are works for hire, but if found not to be then they get the copyright transfer. BUT at the same time, they try to say they are not employees, but independent contractors, which would negate the work for hire position.

Prince's first masters are coming up soon... If he indeed signed a contract like that, do you think he might fight the issue at that point? I wonder sometimes because he always preaches about leaving the old music it the past, yada yada.....plus, alot of the older material would not fall under his current religious beliefs.

We need that fly!

txladykat said:

Oh, I am pretty sure Prince still wants his masters back and will keep on fighting for them as long as he stands a chance in court. You have a point with his religious beliefs but Prince has shown before that business comes first. And leaving the past the past? lol... that's silly Prince talk to keep people talking about him.

I also think it's an easy decision for a court to make that it's a transfer of copyright and not a work for hire, if his contracts contain a clause stating explicitly something like "It is understood and agreed that in entering into this agreement, and in rendering services pursuant thereto, you have, and shall have, the status of an independent contractor and nothing herein contained shall contemplate or constitute you as Label's employee or agent.

If they do not, and WB claims Prince was employed, a court will have to do the SC test on this:

1 Control by the employer over the work (e.g., the employer
may determine how the work is done, has the work done
at the employer’s location, and provides equipment or
other means to create work)
2 Control by employer over the employee (e.g., the employer
controls the employee’s schedule in creating work, has the
right to have the employee perform other assignments,
determines the method of payment, and/or has the right
to hire the employee’s assistants)
3 Status and conduct of employer (e.g., the employer is in
business to produce such works, provides the employee
with benefits, and/or withholds tax from the employee’s
payment)

which is open to the courts interpretation

now see, all that debating and we are now on the same page

Like I said earlier, I agree that I don't think a court would find it to be work for hire. I think they are going to find it to be a contract deal between a corporation and an independent contractor, which subjects the masters to the 35 year rule.

I think the main reason he would want to masters back though is not so much to reproduce them (as we know most Prince fans have hoped for), but to stop WB from using them in the future. What the Prince fans are looking for could have been accomplished by now, remastering his back catalogue from scratch, without the use of his original master tapes. I don't think that will ever see the light of day.

I have a question for you, so I am hitting you with an orgnote....

I love how this thread got diverted from the topic of entrepeneurship to ownership of master tapes.

Se7en said:

but it has been a GREAT discussion...at least for me it has. nice to find someone you can debate with and they dont get offended or angry. turns out our debate took us in the same direction after all

txladykat said:

I am not sure what the problem is. In my opinion it didn't really get diverted because the masters issue is at the core of his entrepenuership.

txladykat said:

The ? is why

Tremolina said:

because he would get bored of it, and need to move on to something new. he needs to create, and re-recording his back catalogue is not a creation so to speak.

Ya'll r killing me stop it!

rbrpm said:

ur one of those hoping for the remasters, come on now..admit it

I hope by 2013 the storm can be finally over once and for all. I just hope Prince can regain his master recordings by then because at the end of the day he deserves it. Warner Bros. should not be holding him up about his work. Prince should have the right to own and control his own work, period. FREE THE MUSIC!

sms130 said:

I agree...but have you been reading all the dialogue above?

sms130 said:

If you ask me I would prepare for a hurricane in 2013!

txladykat said:

I mean digital remasters, not re-recordings.
Why do you think WB doesn't release those if they own the rights?

Tremolina said:

because I imagine it is in the contract that they have to have his permission to do so.