Musicians and composers working in the US market stand up for yours and their royalties. Under the Copyright Act of 1976, the creators of works created in the 70s and 80s more and more often take steps to recover the property rights to their works. Recently, such an action was taken by composer Ennio Morricone.

Ennio Morricone is a legend, and was a prodigy. He composed his first song when he was just six years old, and for six decades he has worked on over 500 films and series. His compositions include songs from such cinematic classics as The Mission, The Untouchables, and Once Upon a Time in America, which make not only die-hard fans of film music shiver. This year, he won the Academy Award for the best original music for The Hateful Eight film.

Recently, the composer decided to take care of regulating and securing the issues related to his copyright, and therefore brought an action aimed at recovering the rights to the film music of three films on which he had worked in the late 70s and 80s.

The opponent of the artist in this dispute is Bixio Music Group – the publisher and music producer of Italian origin – a significant player in the field of music production in the US and Italy, holding a sizeable base of the rights to film music, including such works as The Godfather, Goodfellas, and Kill Bill.

The dispute over the Works made for hire

According to the composer, Bixio collects undue royalties under the licenses granted to film music created for the films Be, Stay as You Are (Cosi Come), A Dangerous Toy (Giocattolo) and Fun is Wonderful (Fun Is Beautiful). In his opinion, the publisher is not entitled to this, as in 2012 Ennio Morricone, through a company for which he transferred his rights – Morricone Music – requested the termination of the current conditions and ordered the transfer of the copyright to the benefit of his company. This termination results from the opportunities offered by the law regulating copyright in the US – the Copyright Act of 1976, authorizing the authors or their heirs to cancel granted copyright after 35 years from the first publication. As it can be easily calculated, for a number of songs from the 70s and 80s, this period has passed, or will pass soon. We can expect to see many interesting cases.

Morricone had already tried in the past to protect his interests, attempting to register claims for royalties with ASCAP – the American Society of Composers, Authors and Publishers – one of the world’s largest organizations for collective management of copyright, uniting more than 80,000 artists and producers. Bixio refused, however, to cede the said works, claiming that they were created as works made for hire, in which case the copyright can not be terminated because the employer is considered to be the original purchaser of copyright under the Act (in the United States the primacy of property rights is acknowledged; moral rights do not play such an important role as in the Polish law).

Works created by employees

It should be noted that the above-mentioned works made for hire can be compared to the structure of work created by employees functioning in Europe. In Poland it is regulated by article 12 of the Law on Copyright and Related Rights. According to this provision, the employer whose employee created a work performing his or her duties arising from the employment, with the adoption of the work acquires copyrights, unless the law or contract provides otherwise. In order for the work to have an “created by employee” character, and for article 12 to be applicable, any relationship between the creation of the work with employment is sufficient. It is essential that the creation of the work was “a result of performing the duties under the employment relationship.” This includes cases where the creation of the work was the responsibility of the employee. Such responsibility may in this case be specified in an employment contract or as part of an official order. It should be noted, however, that this type of acquisition of rights by the employer does not regulate the transfer of related rights or how to perform personal rights, can thus, in practice, prove insufficient. It is worth to settle such issues through an additional contract.

Possible consequences of the dispute

But returning to the land of film music – the lack of consensus on the transfer of rights and the distribution of revenues from it became the basis of the lawsuit submitted by Ennio Morricone in the federal court in New York. The lawsuit is based on the assertion that the songs were not created within the framework of works made for hire, as the composer, within the period of cooperation with the Bixio’s predecessor (Editzione Musicali) and throughout the period worked exclusively as a freelance writer creating music for the film, without being actually employed, and thus never expressed any written permission to the acquisition of the copyrighted musical compositions by the employer.

Bixio refutes these allegations, claiming that the songs were created precisely in the context of works made for hire, which means that the music publisher acquired the rights through an implied license – resulting from the provisions of the act and therefore not requiring the conclusion of actual contracts, because they were created in the context of a Ennio Morricone’s employment relationship with the Edizione Musicali company, which was the commissioner of the works, and then transferred to Bixio.

We should bear in mind that the rights to songs themselves may return to the authors, but the full disposal of them may be significantly impeded. A soundtrack is in fact permanently associated with the image, creating a film together, and derivative works, resulting from the previously granted copyright, may still be used, even after the expiration of these rights. The composer can, of course, collect royalties and sublicense, he or she can not, however, prohibit further use by an authorized distributor on platforms such as Netflix, and it seems to be a great distribution channel for older films, of niche character.

The suit filed by Ennio Morricone is a sign for the entire industry of film composers, which can cause similar requests also by other artists. Over the last several months similar lawsuits have been filed in connection with films such as Friday the Thirteenth and This Is Spinal Top.