David W. Fenton wrote:
On 14 Nov 2006 at 10:13, Mark D Lew wrote:
By
default, under American law, the copyright of any work for hire falls
to the one who is hiring. If a client hires you to write something,
the resulting product belongs to him unless both parties agree
otherwise.
Er, no, I think that's wrong. Work for hire is only work for hire if
the contract explicitly specifies that it is. Otherwise, the creator
owns the copyright. The exception is if you're an employee of a
company and create the content as part of your daily work. Then it's
work for hire without there being a contract, because it was created
on time paid by the employer.
But an outside contractor always has the rights unless the work is
explicitly identified contractually as work for hire. This is the
case for writing and for computer programming. I can't see how it
would be different for Finale.
The important thing is that the paying party specify what they think
they are buying and that the creating party then price the product
accordingly.
But the default is that the creator owns the copyright, not the other
way around.
That's true for original creative content -- if a work is a "work for
hire" it must be stipulated in writing. This actually protects the
person doing the creating, in case the employer asks for something which
would be technically illegal under copyright law. Such as creating an
arrangement of a copyrighted song. Without written permission from the
copyright owner it's illegal and the person doing the arrangement is the
infringer. As a proclaimed-in-writing "work for hire" it is the
employer who is guilty of the infringement, not the arranger.
But page layout has not been copyrightable under U.S. copyright law, so
it would remain for a copyright judge to make a decision as to whether a
Finale file is original creative content or is actually no more than the
same as a secretary transcribing a document from audio recording for his
boss. Nobody would offer the secretary copyright in that transcription,
nor would a court uphold such a claim if the secretary tried to make it.
The secretary has to do some creative work to make that letter or speech
look good on paper, but since page layout isn't copyrightable under U.S.
law, all that creative work is not viewed as copyrightable original
content. Even though the secretary created a Word data file out of that
original letter or speech.
Finale users have to do some creative (often *very* creative) work to
get the music to look good on paper, but that isn't copyrightable, so I
don't think that the U.S. copyright courts would view the finale file as
copyrightable original work.
I will second David's point about how the important thing is that both
parties agree in writing as to just what is being provided.
And it would be wise for engravers who haven't considered this before to
include in their contract the line "The Finale files which are created
as part of this project remain the property of [engraver's name here]."
--
David H. Bailey
[EMAIL PROTECTED]
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