A work for hire means literally that someone is hired to write music. Publishing houses used to keep songwriters on their payroll who would churn out (hopefully) hit after hit for the publishers to shop around. Composers are hired to write background music for movies. In these cases, the composer surrenders any rights to the creative output and is either an employee or independent contractor.
But a band or recording artist does not have this kind of relationship with a label. They have a body of creative work already, a fan base independent of the label, an identifiable personae. The label is simply entering into an agreement to use its resources to record and promote the music to everyone’s mutual benefit. The label is offering the band a service, not vice versa.
Unfortunately, the labels probably have a sound legal argument, as unfair as it seems. In most music contracts they force artists, who have little leverage power, to surrender copyright and other rights in exchange for a small proportion of sales and copyright income. Well-established artists can often negotiate to retain a portion of their copyright when contracts are renewed, but that won’t cover music that has already been produced and released. For example, “Time After Time,” written by Cyndi Lauper and Robert Hyman, is not owned by them but is jointly owned by Warner and Sony/ATV. In 2018, theoretically, Lauper and Hyman should be able to buy back their rights.
The senior Democrat on the House Judiciary Committee, John Conyers, Jr. (D-Michigan), understands that the recording industry’s interpretation of work for hire, though perhaps legally sound, is a perverse misinterpretation of Congressional intent in copyright law. “For too long the work of musicians has been used to create enormous profits for record labels, radio stations and others, without fairly distributing these profits to the artists,” he said. But with Republican control of the House, some lawyers and artist managers see the House as more friendly to the record labels and other big media companies, so any satisfactory resolution to this question may be a long time coming, if at all. In the meantime, three cheers for Representative Conyers for speaking up and trying to address this issue.