Re: sound recordings as works made for hire

On Wed, 21 Jun 2000, Maureen Harrington <mharrington[_at_]thewala.org> wrote:
>
> In looking over the definition of "work made for hire" in the latest
> version of the Copyright Office's Circular 92, I noticed that there
> is no comma preceding "as a sound recording" -- i.e., that segment
> reads "... as a part of a motion picture or other audiovisual
> work as a sound recording, ..." From what I recall, the comma was
> omitted from the sound recording legislation as well. (The comma
> is present, however, in the expeditiously edited Circular 9.)
>
> I assume that this omission is due to a minor typographical error
> that occurred somewhere in the creation of the legislation, but might
> the error have any significance? Might those who oppose the inclusion
> of sound recordings in the second prong of the "work made for hire"
> definition be able to use this error in any way to their advantage?

I don't see how. There have been plenty of typos in copyright legislation,[1] and invariably, the courts look to the substance, not to the accident such as an omitted comma -- especially when an otherwise interpretation would be nonsense.

As an aside, Circular 92 is not itself law, you should look to the law itself to see if it contained the error. And it does. It's a little hard to track down, but Pub. L. 106-116, Division B, sec. 1000(a)(9) incorporates the Nov. 17 1999 version of S. 1948. Section 1101(d) of that bill reads:

   Section 101 of title 17, United States Code, is amended in the    definition relating to work for hire in paragraph (2) by inserting    'as a sound recording,' after 'audiovisual work'.

The amended phrase originally read:

   ... as part of a motion picture or other audiovisual work, as a    translation ...

So, with the S.1948 amendment, it technically now reads:

   ... as part of a motion picture or other audiovisual work as a sound    recording,, as a translation ...

It's pretty clear that that's a plain old goof, not intended by Congress to have substantive effect. They'd intended to instead insert ", as a sound recording", putting one of the extra commas following "sound recording" in front of the added phrase instead of after it. The bill should have read either:

   ... by inserting ', as a sound recording' after 'audiovisual work'.

or:

   ... by inserting 'as a sound recording,' after 'audiovisual work,'.

I can't think of an alternative reading that would make sense. It would mean that a contribution to a motion picture or other audiovisual work cannot be a work for hire unless such works are also sound recordings -- and the statutory definition of sound recordings (which includes the qualifier "but not including the sounds accompanying a motion picture or other audiovisual work") makes that reading nonsense.

That reading also doesn't explain the doubled comma. The Goof Theory does.

[1] I'm not sure which is my favorite goof. It's either the fact that we had two section 512s for a while; or it might have been the provisions in section 112(e)(2). Both of these, and several others, were fixed last year by Pub. L. 106-44.

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