Document Type

Article

Publication Date

2002

Abstract

In late 1999, Congress amended the definition of "works made for hire" in § 101 of the Copyright Act to make explicit its intent to include sound recordings as a category of works eligible for this status. The amendment was repealed with retroactive effect less than a year later. All this happened—pardon the expression—in record time.

This odd course of events was precipitated by a request from the record industry, represented by the Recording Industry Association of America ("RIAA"), which persuaded Congress, shortly before passage of the Intellectual Property and Omnibus Communications Reform Act of 1999, to add a "technical amendment" purporting to clarify Congress' intent to make sound recordings eligible for work-made-for-hire status, thus conferring full authorship of those recordings on record companies rather than recording artists. With neither analysis nor debate, the amendment was accepted by both houses of Congress and signed into law by President Clinton. When outraged musicians and scholars discovered that, virtually overnight, the substantive law of copyright had undergone this dramatic change, the reaction was swift, loud, and overwhelmingly disapproving. Reeling from the bad press, Congress held a brief hearing and retroactively repealed the amendment, returning the authorship of sound recordings to the status quo ante—apparently.

Now that the amendment has been repealed, two questions remain: First, under current law, who is the author of a sound recording? Second, regardless of the answer to the first question under current law, who should be the author of a sound recording?

This Article explores both issues. The attempt to resolve these specific problems, however, reveals a deeper underlying problem in copyright law. Technological change has blurred the distinctions between two categories of copyrightable works-sound recordings and audiovisual works-that were once easily distinguishable from one another. As a result, the current statutory scheme, which allocates different rights to these formerly distinct categories, has lost some of its coherence.

Publication Citation

75 S. Cal. L. Rev. 375 (2002).

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