Copyright Talk

Work-for-hire rules can trip up more than just the authors. The general rule is that copyrightable work created by an employee of a company in the course of their employment duties for that company, belongs to the company and not to the individual who created the work. The work can belong to the employee, IF the employee and the company agree in writing.

But if there is no written agreement otherwise, employees’s creations belong to their employer.

Mary J. Blige is being sued for copyright infringement because she recorded a song that was written by one of her producers, Theron “Neef-U” Feemster. No one disputes that the song was written by the producer. The problem is that a New York production company, Dream Family Entertainment, claims he wrote the song while working for it, and that the song belongs to Dream Family.

So is there any problem, beyond having paid the wrong person? Maybe.

Dream Family is asking for damages only, which may be good news for Blige. Here’s how the situation breaks down:
Blige released the song on an album and a single. The first time a song is ever recorded and released publicly, the copyright owner must give permission (or permission can be withheld). Once the song has been publicly released, then anyone can record it and pay the compulsory license fee to the owner. So if the song, “Work It,” had ever been recorded before, then Blige had a right to record it conditioned only on paying the compulsory fee. However, if it had never been recorded before, the compnay could ask for monetary damages as well as the withdrawal of the recording - which would mean recalling all unsold albums and re-pressing the album without the song. Apparently, Dream Family is not asking for this remedy.

The song was also used in a television commercial featuring Blige. Using a song in this way implicates what are known as “synch” rights, or the right to synchronize a song with a video recording. Using a song in this way always requires the permission of the owner, and the payment is individually negotiated. So, once again, Dream Family could ask for the commercial to be withdrawn in addition to any monetary damages they would be entitled to.

At this point, Blige’s camp could do a number of things. They could defend the suit and try to prove that Dream Family does not own the song. They could agree to pay Dream Family for the song and simply sit down with them and work out a number. And they could also turn back to the producer and claim fraud or some other harm caused by his assertion that he owned the song.