## Facts

- Bob Marley entered recording agreements with Island Records, Ltd. in 1972, 1974, and 1975 to perform and deliver sound recordings for albums in exchange for advances against royalties.
- Island financed recording sessions and paid advances, while Marley’s compensation depended on royalty recoupment tied to sales.
- The agreements provided that the parties would “mutually agree” on material to be recorded, but Island retained discretion to determine whether recorded material was acceptable for manufacture and sale.
- The dispute concerned ownership of renewal-term copyrights in certain pre-1978 sound recordings embodying Marley’s performances.
- Marley died in 1981 during the initial copyright term applicable under the 1909 Copyright Act for works published before 1978.
- Marley’s widow, children, and their company sought a declaratory judgment that they owned the renewal-term copyrights as statutory successors.
- UMG Recordings, Inc., as successor to Island, asserted the recordings were works made for hire under the 1909 Act and that UMG owned the renewal interests.

## Issues

1. Whether the pre-1978 sound recordings created under the Island agreements were “works made for hire” under the 1909 Act based on the “instance and expense” test.
2. If the recordings were works made for hire, whether Island/UMG owned the renewal-term copyrights rather than Marley’s statutory heirs.

## Decision

- The court applied the 1909 Act and Second Circuit “instance and expense” precedent rather than the 1976 Act definition of work made for hire.
- The court found “instance” satisfied because Island induced creation of the recordings and retained meaningful contractual control through approval and rejection rights over recordings for commercial release.
- The court found “expense” satisfied because Island financed the sessions, paid advances, and bore the financial risk of production and recoupment.
- The court found no express contractual provision reallocating authorship or reserving renewal rights to Marley or his heirs.
- The court granted UMG’s motion for summary judgment on renewal-term ownership and denied plaintiffs’ request for declaratory relief.

## Legal Principles

- For pre-1978 works governed by the 1909 Act, work-for-hire status is determined by whether the work was created at the commissioning party’s “instance and expense.”
- “Instance” focuses on inducement and the right to supervise, direct, or control the work, including contractual approval and rejection rights.
- “Expense” focuses on who provided consideration and assumed financial risk, including paying advances and funding production costs.
- When the instance-and-expense test is met, the commissioning party is presumed to be the statutory author and owner absent an express agreement to the contrary.
- If the commissioning party is the statutory author of a work made for hire under the 1909 Act, it owns both the initial and renewal-term copyrights.

## Conclusion

The court held that Island’s successor, UMG, owned the renewal-term copyrights in the Marley pre-1978 sound recordings because the recordings were created at Island’s instance and expense and the contracts did not expressly reserve authorship or renewal rights to Marley or his heirs.


Fifty-Six Hope Rd. Music Ltd. v. UMG Recordings, Inc., 2010 WL 3564258 (S.D.N.Y. Sept. 10, 2010)