They Could Be Back: The Possibility of Termination Rights for Session Musicians

Beginning in 2013, many musicians became eligible to regain rights they assigned to recording companies thirty-five years ago. Through a provision of the Copyright Act, artists can "terminate" these rights and regain control of their work as long as the work was not a "work for hire." This Comment focuses on session musicians' ability to claim termination rights in their creative contributions to sound recordings. Session musicians have been the focus of increased attention because many of them signed away their rights for little payment and control and without knowing the future possible uses of their works, particularly in digital sampling.This Comment first considers whether these session musicians qualify as employees for hire under the statutory definition and subsequent work-for-hire doctrine. After determining that these musicians are not always employees for hire, this Comment examines the types of authorship claims they have at their disposal. Most session musicians will not be able to claim joint authorship under the current doctrine, but they may have the ability to claim copyright in independently contributed material. Due to these authorship claims, the session musicians will be able to exercise termination in certain circumstances.IntroductionVictor Willis was one of the lead singers of the Village People, but he has been unable to control the use of his biggest hit, "Y.M.C.A.," for over thirty-five years.1 Willis, like many artists, assigned the rights in the song to the record company; as a result, the record company maintained sole control over the song's use and licensing.2 Now, thirty-five years later, Willis has regained the rights to his famous song due to a provision in the 1976 Copyright Act that allows artists to terminate rights previously assigned to the recording company.3 This "termination right" allows artists like Willis, who quickly signed away their rights in the glory of the moment, to come back and bargain with large record companies on more equal footing.4Now imagine you are an artist who has performed on countless chart-topping hits, but unlike Mr. Willis, you were not a group's lead singer. Imagine further that your records are "classics" and as prolific as the "Y.M.C.A." but that you are not a household name. Unlike Willis, you received no royalties for your creative contributions over the past thirty-five years but, rather, a mere one-time payment under the umbrella of "work for hire." Then imagine that your creative contributions were used to supplement other artists' hits, but you received neither compensation nor credit on the record. Welcome to the life of a session musician.Session musicians are artists who support lead artists' work and provide background vocals or instrumental accompaniment.5 Session musicians are highly skilled, and many of them are treasured by the music industry for their contributions to numerous successful tracks.6 Many of the most famous songs become what they are due to the talents of musicians who are paid a marginal lump sum fee.7 Session musicians are underappreciated and often overlooked. As some involved in the music industry have suggested, " [y] ou might not have heard their names, but you've definitely heard their music."8Typically, a recording studio hires session musicians to play background for a lead artist on a particular track.9 Many artists, particularly those who are new to the music business, are quick to sign paperwork assigning all of their rights to the record company.10 These contracts typically include a work-for-hire agreement* 11-and therein lies the problem. If a sound recording is legally considered a work for hire, then the artist cannot terminate that right because the employer-in this case the studio-is the sole owner of the copyright.12 However, session musicians often add real creative contributions to the work.13It remains possible that these employment contracts are not sufficient to create a work for hire in all cases or that not all session musicians signed such contracts. …