A client approached our firm in June 2025 concerning an estate issue. The client is the sole heir (and the living spouse) of a musician who died in 2007. Before her death, the musician released three albums to critical acclaim. In her will, the musician left behind all her assets to the client.
The musician's three albums were released in 1989, 1990, and 1995. Prior to recording these albums, on December 31, 1988, the musician entered into a single contract with Warner Music Group (the “Company” or “WMG”). The contract sets out the musician’s and the Company’s rights to the musician’s three subsequently-released albums. Importantly for present purposes, the contract contains the following two clauses, both of which were heavily negotiated:
Clause A (Independent Status): “For all purposes, including international tax and liability, the Artist* shall be considered an independent contractor. Nothing in this agreement shall be construed to create a partnership, joint venture, or employer/employee relationship.”
Clause B (Work for Hire): “The parties expressly agree that all sound recordings created hereunder shall be considered ‘works made for hire’ as defined in 17 U.S.C. § 101, with the Company (WMG) being deemed the sole author of the works in perpetuity. This stipulation is a material inducement for the Company entering into this agreement.”
As it is used in the contract, “Artist” refers to the musician.
As set out above, the agreement stipulated that the musician would not be considered an employee of WMG and that the musician would assign the recording copyrights to all albums released between 1988 and 1999 to WMG. The agreement further stipulated that the albums would be considered “works made for hire.”
The client wants to know whether or not he owns the copyrights over the sound recordings of the musician’s three albums. If not, the client would like to know if he can ever regain ownership over the copyrighted sound recordings and if so, how.
Write a legal research memo of no more than 1,500 words that answers the client’s questions. Assume that (1) the musician meets the definition of an independent contractor under the relevant agency test established in Community for Creative Non-Violence v. Reid, 490 U.S. 730 (1989); (2) any argument that the albums should be considered compilations is invalid; (3) the albums were made solely by the musician (i.e., were not joint works with another artist); and (4) the agreement does not cover the right of publication with respect to the albums. The analysis in your memo should reflect the state of the law as of Sunday, June 8, 2025. Confine your legal research to the uploaded sources. Do not rely on outside sources. Your memo must cite every authority and source on which it relies. Every citation should be in Bluebook format.
MEMORANDUM
TO: Client
FROM: Attorney
DATE: June 8, 2025
RE: Copyright Ownership and Termination Rights in Musician's Albums
I. EXECUTIVE SUMMARY
You do not currently own the copyrights to your late spouse's three albums, but you have valuable termination rights under federal copyright law that would allow you to reclaim ownership. I recommend exercising these rights promptly, as your termination window closes December 31, 2028.
II. CURRENT COPYRIGHT OWNERSHIP
Warner Music Group currently owns the copyrights under the 1988 recording contract. While Clause B designates the albums as "works made for hire," this contractual language cannot override federal statutory requirements and is therefore legally ineffective.
III. WORK-MADE-FOR-HIRE ANALYSIS
The albums cannot qualify as works made for hire under 17 U.S.C. \u00a7 101. A "work made for hire" exists only when:
(1) A work is "prepared by an employee within the scope of his or her employment"; or
(2) A work is "specially ordered or commissioned" for specific uses and "the parties expressly agree in a written instrument signed by them that the work shall be considered a work made for hire."
Since your spouse was an independent contractor under Clause A, option (1) does not apply. For option (2), the work must fall within one of nine enumerated categories: "contribution to a collective work," "part of a motion picture or other audiovisual work," "translation," "supplementary work," "compilation," "instructional text," "test," "answer material for a test," or "atlas." 17 U.S.C. \u00a7 101.
Sound recordings are conspicuously absent from this exclusive list. As the Supreme Court held in Community for Creative Non-Violence v. Reid, Section 101 "plainly creates two distinct ways in which a work can be deemed for hire: one for works prepared by employees, the other for those specially ordered or commissioned works which fall within one of the nine enumerated categories and are the subject of a written agreement." 490 U.S. 730, 742 (1989). These categories are "mutually exclusive." Id. at 743.
Because sound recordings by independent contractors cannot qualify as works made for hire, Clause B is legally ineffective. The contract instead operates as a transfer of copyright ownership from your spouse to WMG, making the albums subject to copyright termination rights.
IV. COPYRIGHT TERMINATION RIGHTS
A. Legal Framework
Section 203 of the Copyright Act allows authors and their heirs to terminate copyright transfers as protection against "unremunerative transfers" resulting from "the unequal bargaining position of authors." H.R. Rep. No. 94-1476, at 124 (1976). This provision grants creators "a second bite at the apple" to renegotiate terms. 'A Second Bite at the Apple': Copyright Case Highlights Section 203 Recapture Rights, Morgan Lewis LawFlash (Oct. 22, 2024).
B. Eligibility Requirements
You satisfy all requirements:
\u2022 The transfer was "executed by the author on or after January 1, 1978" (December 31, 1988). 17 U.S.C. \u00a7 203(a).
\u2022 The albums are not works made for hire. Id.
\u2022 As surviving spouse and sole heir, you own the complete "termination interest." Under 17 U.S.C. \u00a7 203(a)(2)(A), "[t]he widow or widower owns the author's entire termination interest unless there are any surviving children or grandchildren of the author."
C. Termination Window and Notice Requirements
You have a five-year window "beginning at the end of thirty-five years from the date of execution of the grant." 17 U.S.C. \u00a7 203(a)(3). Since the contract was executed December 31, 1988, your window runs from January 1, 2024, through December 31, 2028.
To terminate, you must serve advance written notice "not less than two or more than ten years before" the effective termination date. 17 U.S.C. \u00a7 203(a)(4)(A). The notice must "state the effective date of the termination, which shall fall within the five-year period" and be "recorded in the Copyright Office before the effective date of termination." Id.
Since we are in June 2025, you could serve notice now for termination effective between June 2027 and December 31, 2028.
V. EFFECT OF TERMINATION
Upon termination, "all rights under this title that were covered by the terminated grants revert to" you. 17 U.S.C. \u00a7 203(b). You would own the copyrights outright and could license them independently or renegotiate with WMG.
WMG retains limited rights in any "derivative work prepared under authority of the grant before its termination," which "may continue to be utilized under the terms of the grant after its termination." 17 U.S.C. \u00a7 203(b)(1). However, this does not extend to "preparation after the termination of other derivative works." Id.
VI. INALIENABILITY OF TERMINATION RIGHTS
Your termination rights cannot be waived. Section 203(a)(5) provides that "[t]ermination of the grant may be effected notwithstanding any agreement to the contrary, including an agreement to make a will or to make any future grant." Even contractual language purporting to waive these rights would be unenforceable.
Recording contracts routinely include "belt and suspenders" clauses attempting to classify recordings as works made for hire while also effecting transfers. However, "musicians can still find recourse in their copyright termination rights, which are inalienable and cannot be transferred or waived." Kike Aluko, Terminating the Struggle Over Termination Rights, 10 Harv. J. Sports & Ent. L. 120, 123 (2019).
VII. STRATEGIC CONSIDERATIONS
Industry practice suggests record labels often prefer to "renegotiate with artists to retain ownership over their catalog of sound recordings" rather than face litigation. Id. at 124. Recent cases, including Lil' Joe Records Inc. v. Ross involving 2 Live Crew's successful termination of their 1990 recording agreement, demonstrate that artists can prevail when sound recordings are improperly classified as works made for hire. Morgan Lewis LawFlash, supra.
Your termination right provides significant leverage to either reclaim full ownership or negotiate substantially improved terms with WMG. Given your spouse's critical acclaim and ongoing revenue potential from streaming and licensing, these copyrights likely retain substantial value.
VIII. RECOMMENDATION
I strongly recommend serving termination notice on WMG immediately. Key considerations:
\u2022 Your termination window closes December 31, 2028
\u2022 Early action preserves maximum flexibility in timing termination
\u2022 The termination right provides significant negotiating leverage
\u2022 Delay risks missing the statutory window entirely
Reclaiming ownership would position you to maximize the ongoing value of these critically acclaimed albums while preserving your spouse's artistic legacy.
| Styles the work product as a legal memorandum. | Yes |
| Ensures that the memorandum does not exceed 1,500 words. | No |
| States that copyright ownership vests initially in the statutorily-defined “author” of the original work. | No |
| States that the person who creates the work is its author unless the work was made for hire as defined by 17 U.S.C. § 101, in which case the employer or person whom the work was prepared for is considered the author. | No |
| States that, under 17 U.S.C. § 101, there are two ways in which a work may be created as a work made for hire: (1) if it is created by an employee acting within the scope of his or her employment; or (2) work-made-for-hire status may attach to works that are “specially ordered or commissioned” under a written work-made-for-hire agreement, but only if the works fall into one of nine exclusive categories of copyrightable works specified: a contribution to a collective work, as a part of a motion picture or other audiovisual work, as a translation, as a supplementary work, as a compilation, as an instructional text, as a test, as answer material for a test, or as an atlas. | Yes |
| States that the musician was an independent contractor, not an employee, so the first avenue for characterization as a work for hire is not met. | Yes |
| Concludes that the albums are not works made for hire, even though the contract purportedly deems them to be so, because sound recordings are not within the nine enumerated categories of works that may be deemed works for hire under 17 U.S.C. § 101. | Yes |
| Concludes that ownership of the copyright to the sound recordings first vested in the musician. | Yes |
| States that the musician, as original copyright holder, assigned the rights to the albums to Warner Music Group (WMG) pursuant to Clause B in their 1988 agreement. | No |
| Concludes that the client does not currently own the copyrights to the albums. | Yes |
| States that the Copyright Act grants the musician author or her heirs the right, subject to certain conditions, to terminate grants of copyright transfers or licenses that were executed on or after January 1, 1978. | Yes |
| States that the right to terminate grants of copyright transfers or licenses cannot be waived or alienated. | Yes |
| Concludes that the client, as the author’s sole heir and living spouse, maintains transfer rights over the sound recordings. | No |
| States that for assignments executed on or after January 1, 1978, termination may be effected at any time during a five-year period beginning at the end of 35 years from the date of execution of the grant. | Yes |
| Concludes that the five-year termination window for all the works at issue opened on January 1, 2024. | Yes |
| Concludes that the five-year termination window for all the works at issue will close on December 31, 2028. | Yes |
| States that to give effect to the termination of rights, the client must serve a written notice upon WMG. | No |
| States that the written notice to terminate must state the effective date of termination. | Yes |
| States that the written notice to terminate must be served to WMG at least two years before, and at most ten years before, the stated effective date of termination. | No |
| States that a copy of the termination notice must be recorded with the Copyright Office before the effective date of termination. | Yes |
| Recommends that the client serve a termination notice as soon as possible, and before the end of 2028, with an effective termination date of two years from the date of service. | No |
| The model provides accurate Bluebook formatting for each citation. | No |