Forward v. Thorogood
985 F.2d 604 (1993)
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Rule of Law:
Under common law copyright, the performer of a musical work is the presumptive author and copyright owner. Merely arranging and financing a recording session for another's benefit does not confer copyright ownership under the 'work for hire' or 'joint author' doctrines without evidence of an employment relationship, commissioning for one's own benefit, or direct artistic contribution to the work.
Facts:
- In 1975, John Forward, a fan of the musical group George Thorogood and the Destroyers (the 'Band'), struck up a friendship with the musicians.
- To help the Band secure a recording contract with Rounder Records, Forward arranged and paid for two recording sessions in 1976.
- Forward’s involvement in the sessions was limited to arranging and paying for them and requesting that the Band perform certain songs.
- The recording sessions resulted in a 'demo' tape that successfully led to Rounder Records signing the Band to a contract.
- After the sessions, the Band agreed that Forward could keep the physical tapes for his personal enjoyment, and the tapes have remained in his possession.
- In 1988, Forward announced his intention to sell the 1976 tapes to a record company for commercial release, against the Band's wishes.
Procedural Posture:
- John Forward filed suit in the U.S. District Court for the District of Massachusetts, seeking a declaratory judgment that he held the common law copyright to the tapes.
- The Band filed a counterclaim for declaratory and injunctive relief, asserting their own copyright ownership.
- After a five-day bench trial, the district court issued findings of fact and conclusions of law in favor of the Band.
- The district court entered a final judgment declaring the Band members to be the copyright owners and permanently enjoined Forward from commercially exploiting the tapes.
- Forward (appellant) appealed the district court's judgment to the U.S. Court of Appeals for the First Circuit.
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Issue:
Under common law copyright, does an individual who arranges and pays for a band's recording session to create a demo tape, but makes no artistic contribution to the performance or recording, acquire copyright ownership of the resulting tapes?
Opinions:
Majority - Boudin, Circuit Judge
No. An individual who merely arranges and pays for a band's recording session without making an artistic contribution does not acquire copyright ownership. The creator of a work is presumptively its author and copyright owner, and in a musical recording, the performers are the authors. While the common law sometimes inferred a transfer of copyright from the physical transfer of an object, this was a rebuttable presumption based on intent. Here, the district court found the Band never intended to convey their copyright, allowing Forward to keep the tapes solely for personal enjoyment. Furthermore, the 'work for hire' doctrine is inapplicable because Forward did not employ or commission the band for his own benefit; he was a fan fostering their career, not a commissioning party. Finally, Forward cannot be a 'joint author' because he made no musical or artistic contribution to the recordings, as his role was purely logistical and financial.
Analysis:
This decision reinforces the fundamental copyright principle that authorship, and thus initial ownership, vests in the actual creators of the work, not merely in a patron or facilitator. The ruling clarifies the narrow application of the common law 'work for hire' doctrine, distinguishing between financial patronage and a true commissioning relationship where the commissioning party directs and benefits from the work. This case establishes a clear precedent that being the 'instance and expense' behind a creative work is insufficient on its own to claim copyright; there must be an element of employment, artistic control, or direct creative input to claim authorship rights over performers.
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