Reclaim the Copyright - Morricone Music v. Bixio Music
The Second Circuit recently examined a unique interaction between U.S. and Italian copyright law.
In the 1970s to 1980s, Italian composer Ennio Morricone entered into an agreement with an Italian music publisher, Bixio Music Group, to compose scores for six films in Rome. Ennio is known for such films as De Palma’s “The Untouchables” and more recently Tarantino’s “The Hateful Eight.” Ennio received 3 million Italian lire and limited royalties, and in exchange he assigned his rights to Bixio Music Group. The assignment was governed by Italian law and stated, in relevant part:
“You do hereby grant and transfer to us, exclusively, for the maximum total duration permitted by the laws in force in each country in the world, and at the conditions established here below, all rights of economic use, in any country in the world, with regard to the works. …[T]he film’s soundtracks and its tapes, music, orchestrations, records, etc. are and shall forever continue to be the absolute and exclusive property of [Bixio] who shall be free to use them as [it] pleases at any time and in all Countries of the world.”
35 years later, Ennio sought to terminate the assignment under U.S. law 17 U.S.C. Section 203.
According to the statute, “in the case of any work other than a work made for hire, the exclusive or nonexclusive grant of a transfer or license of copyright or of any right under a copyright, executed by the author on or after January 1, 1978, otherwise than by will, is subject to termination…at the end of 35 years from the date of execution of the grant.”
Since the assignment was governed by Italian law, the court needed to analyze whether Italy had a comparable doctrine to the U.S. works made for hire rule. The Court notes that Article 44 of the Italian Copyright Code provides that a composer of music in film is considered a “joint author” of the work and retains sole authorship of the score itself.
In the U.S., if a composer is commissioned as a “work made for hire,” the person who commissioned the composer is considered the author of the work from the time it is created.
The Court holds that comparing the two statutory schemes would be an overbroad application of the “work made for hire” doctrine. As such, there is no comparable doctrine and Ennio is permitted to terminate the assignment.
Producer’s (or artist’s) note: If a non-employee artist is commissioned – composer or otherwise – explicitly add (or omit) from a written contract that work performed is a “work made for hire.” Without this language, in writing, the artist will be considered the author of the work they perform.
Side Note: This case is also a great example of European vs. US theory on copyright. The general philosophy across Europe is that copyright should focus on the author. France, for example, believes the ultimate aim is the protection of authorship because, if one cannot own one’s own intellectual creation, what can one own?
The U.S. on the other hand, aims to “promote the useful art and science.” As a result, the U.S. has a reward/incentive philosophy – reward the author with payment for a limited time, make other people want the same.
Opinion: Ennio Morricone Music Inc. v. Bixio Music Group LTD.
