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04B work for hire
1909 Act: §§23, 62
1947 Act: §§24, 26
1976 Act: §201(b); §101, within definition of “work made for hire”
Circular 9 “Work-Made-For-Hire Under the 1976 Copyright Act”
“If a work is ‘made for hire,’ the employer, and not the employee, is considered the author. The employer may be a firm, an organization, or an individual.” (Information Circular 9)
“The term of copyright protection of a work made for hire [if 1978 or later] is 95 years from the date of publication or 120 years from the date of creation, whichever expires first.” (Information Circular 9)
“In the fall of 1985, petitioners—the Community for Creative Non-Violence (CCNV), a Washington, D.C., organization dedicated to eliminating homelessness, and one of its trustees—entered into an oral agreement with respondent [James Earl] Reid, a sculptor, to produce a statue dramatizing the plight of the homeless for display at a 1985 Christmas pageant in Washington. While Reid worked on the statue in his Baltimore, Md., studio, CCNV members visited him on a number of occasions to check on his progress and to coordinate CCNV’s construction of the sculpture’s base in accordance with the parties’ agreement. Reid accepted most of CCNV’s suggestions and directions as to the sculpture’s configuration and appearance. After the completed work was delivered to Washington, CCNV paid Reid the final installment of the agreed-upon price, joined the sculpture to its base, and displayed it. The parties, who had never discussed copyright in the sculpture, then filed competing copyright registration certificates. The District Court ruled for CCNV in its subsequent suit seeking, inter alia, a determination of copyright ownership, holding that the statue was a ‘work made for hire’ as defined in the Copyright Act of 1976, 17 U.S.C. 101, and was therefore owned exclusively by CCNV under 201(b), which vests copyright ownership of works for hire in the employer or other person for whom the work is prepared, unless there is a written agreement to the contrary. The Court of Appeals reversed, holding that the sculpture was not a ‘work made for hire’ under the first subsection of the 101 definition, since it was not ‘prepared by an employee within the scope of his or her employment’ in light of Reid’s status as an independent contractor under agency law. The court also ruled that the statue did not satisfy the second subsection of the 101 definition, since sculpture is not one of the nine categories of ‘specially ordered or commissioned’ works enumerated therein, and the parties had not agreed in writing that the sculpture would be a work for hire.” (from the summary provided by the Supreme Court)
The Supreme Court (in a unanimous verdict) determined that the sculpture did not meet the definition of a “work for hire.” The Supreme Court hadn’t needed to deal with the second part of the lower court argument because by that time, the petitioners had conceded that the work was not among the “‘the nine categories of “specially ordered or commissioned” works enumerated’” in “‘second subsection of the 101 definition’”.
Nonetheless, the Supreme Court had been required to interpret “the first subsection of the 101 definition” in relation to the facts of the case.
“In determining whether a hired party is an employee under the general common law of agency, we consider the hiring party’s right to control the manner and means by which the product is accomplished. Among the other factors relevant to this inquiry are the skill required; the source of the instrumentalities and tools; the location of the work; the duration of the relationship between the parties; whether the hiring party has the right to assign additional projects to the hired party; the extent of the hired party’s discretion over when and how long to work; the method of payment; the hired party’s role in hiring and paying assistants; whether the work is part of the regular business of the hiring party; whether the hiring party is in business; the provision of employee benefits; and the tax treatment of the hired party. No one of these factors is determinative… .
“Reid was not an employee of CCNV but an independent contractor. True, CCNV members directed enough of Reid’s work to ensure that he produced a sculpture that met their specifications. But the extent of control the hiring party exercises over the details of the product is not dispositive. Indeed, all the other circumstances weigh heavily against finding an employment relationship. Reid is a sculptor, a skilled occupation. Reid supplied his own tools. He worked in his own studio in Baltimore, making daily supervision of his activities from Washington practicably impossible. Reid was retained for less than two months, a relatively short period of time. During and after this time, CCNV had no right to assign additional projects to Reid. Apart from the deadline for completing the sculpture, Reid had absolute freedom to decide when and how long to work. CCNV paid Reid $15,000, a sum dependent on ‘completion of a specific job, a method by which independent contractors are often compensated.’ Reid had total discretion in hiring and paying assistants. ‘Creating sculptures was hardly “regular business” for CCNV.’ Indeed, CCNV is not a business at all. Finally, CCNV did not pay payroll or Social Security taxes, provide any employee benefits, or contribute to unemployment insurance or workers’ compensation funds.”
The opposing conclusion, as reached by the district court, “reasoned that Reid had been an ‘employee’ of CCNV within the meaning of 101(1) because CCNV was the motivating force in the statue’s production. Snyder and other CCNV members, the court explained, ‘conceived the idea of a contemporary Nativity scene to contrast with the national celebration of the season,’ and ‘directed enough of [Reid’s] effort to assure that, in the end, he had produced what they, not he, wanted.’
“The Court of Appeals for the District of Columbia Circuit reversed” saying that “under agency law, Reid was an independent contractor” and “sculpture is not one of the nine categories of works enumerated in that subsection”.
In the absence of conclusive wording in the Copyright Act as to what differentiates a “work for hire” from a work that isn’t, the Supreme Court examined several possible approaches, including “the conventional master-servant relationship as understood by common-law agency doctrine.” Finding inadequate foundations for several positions, the Court rejected many. “We therefore conclude that the language and structure of 101 of the Act do not support” two particular approaches accepted by lower courts.
The Court had become concerned that “Under petitioners’ approach, therefore, parties would have to predict in advance whether the hiring party will sufficiently control a given work to make it the author. ‘If they guess incorrectly, their reliance on “work for hire” or an assignment may give them a copyright interest that they did not bargain for.’ Easter Seal Society, 815 F.2d, at 333; accord, Dumas, supra, at 1103. This understanding of the work for hire provisions clearly thwarts Congress’ goal of ensuring predictability through advance planning. Moreover, petitioners’ interpretation ‘leaves the door open for hiring parties, who have failed to get a full assignment of copyright rights from independent contractors falling outside the subdivision (2) guidelines, to unilaterally obtain work-made-for-hire rights years after the work has been completed as long as they directed or supervised the work, a standard that is hard not to meet when one is a hiring party.’ Hamilton, Commissioned Works as Works Made for Hire Under the 1976 Copyright Act: Misinterpretation and Injustice, 135 U. Pa. L. Rev. 1281, 1304 (1987).”
The Supreme Court conceded that “as the Court of Appeals made clear, CCNV nevertheless may be a joint author of the sculpture if, on remand, the District Court determines that CCNV and Reid prepared the work ‘with the intention that their contributions be merged into inseparable or interdependent parts of a unitary whole.’ In that case, CCNV and Reid would be co-owners of the copyright in the work.”
Fred Fisher worked for Maurice Shapiro under a contract dated August 25, 1909, until it was terminated February 7, 1911. Alfred Bryan started work for Maurice Shapiro September 10, 1910, under a contract renewed February 8, 1911, and terminated three days later. The songs written jointly by Fisher and Bryan were under employment to Shapiro, and included “Come Josephine in My Flying Machine” (Fall 1910), copyrighted October 18, 1910, by Shapiro, who died June 1, 1911. Plaintiff firm renewed the copyright October 19, 1937, as “Proprietor in copyright in a work made for hire.” “The right of renewal in a work made for hire is not given to the author, nor to the employer as author, but to the proprietor.” This renewal was proper. Fisher and Bryan wanted to renew in their own names.
When the CBS radio program Mercury Theater of the Air broadcast an adaptation of the H.G. Wells novel The War of the Worlds on Halloween eve 1938, it created a commotion. Listeners who heard the drama, as performed in news-bulletin format, believed that the Earth was being invaded by Martians. Two decades later, CBS Television broadcast a fact-based drama depicting that panic, calling it The Night America Trembled. To recreate the events, the teleplay incorporated substantial recreations of the 1938 radio broadcast. (Those who recall a 1975 made-for-TV movie on ABC called The Night That Panicked America are recalling yet another dramatization of these events.)
CBS and sponsor Westinghouse Electric, having determined that they would be incorporating new performances of scenes from the radio drama, contracted with the author of that script, Howard W. Koch. “On April 25, 1957 Howard Koch, for consideration [probable meaning: money—Editor] and in writing, granted defendant Columbia Broadcasting System the right to use said script in a television play The Night America Trembled, which was a documentary teleplay portraying the panic precipitated by said radio broadcast and was telecast over the television facilities of Columbia Broadcasting System September 9, 1957.”
Some of the circumstances surrounding the original broadcast had been such that CBS might have been considered the owner of the broadcast and its script as of 1957. The network had paid all of the costs associated with the 1938 broadcast (it not having had a sponsor, for lack of sponsor interest) and had acquired a contract under which another company had arranged for programs to be produced by Orson Welles, who “produced and directed [the] radio broadcast on October 30, 1938” and who “conceived, originated, devised and created the style of said radio show ”.
The reader of this web page who sees that Orson Welles sued CBS might wonder how his name came into this.
Welles filed suit, claiming that “pursuant to a written agreement dated August 30, 1938, between [Welles] and Columbia Artists, Inc., a corporation no longer in existence, for the benefit of CBS, [Welles] produced and directed a radio broadcast on October 30, 1938; that [Welles] conceived, originated, devised and created the style of said radio show; that [Welles] never granted any rights to anyone to use said show, and that he is the sole owner of all common law rights therein and thereto. It is further alleged that the agreement was assigned to CBS by Columbia Artists, Inc., without [Welles’s] consent; that CBS and Westinghouse infringed [Welles’s] alleged common law copyrights or other alleged common law rights in the said radio show, and were guilty of unfair competition by using and reproducing a portion of the radio show on a television show entitled The Night America Trembled, which was telecast throughout the United States over the facilities of CBS on September 9, 1957.”
The Appeals Court decision noted that CBS and Westinghouse “deny any liability or damages, and justify their action on the principal ground that, not [Welles], but one Howard Koch was the author and owner of the script and script rights upon which the radio show was based, and that [CBS and Westinghouse] had secured proper authority form Koch for use of such script in the television show.”
The Appeals Court agreed with these findings of the lower court:
“3. Plaintiff conceived the idea of presenting said radio broadcast of an adaptation of H. G. Wells’ novel, The War of the Worlds and also conceived the idea of dramatizing said novel by means of radio announcements describing the contemporaneous invasion of Martians.”
“5. Plaintiff acquired from Howard Koch the right to use such script on said radio broadcast, but Howard Koch retained all other rights therein.”
“6. Although plaintiff made some minor changes and modifications in said script after it had been completed by Howard Koch, plaintiff was neither author nor a co-author thereof.”
The Appeals Court found, “The evidence fails to support the factual contentions of the appellant. On the contrary, it more strongly supports the findings of fact of the lower court.”
Welles testified through deposition that the arrangement between he “and Koch, the writer of the script for the radio show, was that of mere employer and employee, and that any rights in the script prepared by Koch were the property of [Welles] rather than Koch. However,… Koch dealt with one [John] Houseman entirely and that the arrangement with Houseman was that, after a limited time, in view of the small fee paid Koch for writing the script all rights in the script would belong to Koch and not to appellant Welles. Nowhere in the record and evidence is there any intimation that Houseman was not available as a witness in behalf of appellant [Houseman remained sharp-minded until his death in 1988] to contradict this testimony of Koch if it was untrue. Houseman was not called.” Neither was “Paul Stewart, an employee or associate of Welles [who] had conferences with Koch in connection with the script”.
The decision does concede that “if Mr. Welles had owned rights in the script—there was a sufficient taking to constitute more than fair use, [yet] appellant’s case must fail because he had no such rights.”
Twenty years earlier, Welles was lauded for having staged a radio broadcast which fooled numerous Americans into believing it was a news event; he was sought by radio directors for important roles; he won an Academy Award for co-writing the screenplay to Citizen Kane (1941) and was nominated in other categories for that film. Now he was exerting his efforts on a legal action without merit. No wonder some of his colleagues and biographers say that he sought credit for achievements which weren’t his. (Koch also had become no stranger to work on Academy Award-winning films. He co-wrote the screenplay for Casablanca.)
illustrations: the lower image is a typical scene of The Night America Trembled. Three performers focus on their radio scripts while performing a live broadcast the night before Halloween 1938. The round-faced actor on the left is introduced as the host of Mercury Theater but never referred to by name. During the broadcast, he performs several roles. When the actual broadcast had occurred nineteen years before this docudrama, Orson Welles was host — identified by name in the opening statement of the program — and versatile voice actor, portraying several characters.
“In 1956, John Marascalco and Robert A. Blackwell co-wrote the song ‘Good Golly Miss Molly’… . On July 23, 1956, in exchange for royalties, Marascalco and Blackwell assigned their copyright interests in the song, including ‘any and all renewals of copyright’ to Venice [Music]. Venice registered the song with the Copyright Office on January 22, 1957, naming Venice as the copyright owner and Marascalco and Blackwell as the authors. On October 15, 1959, Blackwell assigned his royalties back to Venice. In 1973, Venice assigned its interest in the song to Argosy Ventures, which, in turn, assigned the interest to Fantasy, Inc… .
“On March 15, 1986, Blackwell’s daughters [having inherited their father’s rights] assigned their interest in the song’s copyright to Marascalco in exchange for royalties.
“Fantasy’s refusal to recognize Marascalco as the assignee of Blackwell’s interest prompted this action for a declaration of rights. Marascalco does not contest Fantasy’s ownership of the other one-half interest of the copyright.
“The issues presented are whether Blackwell’s authorship of the song was a ‘work made for hire,’ and” one other issue, summarized under renewal term: rights of widows, widowers and next-of-kin. (If the song was not a work for hire, Blackwell’s assignment ended with the first term of copyright because his death gave his daughters the right to negotiate anew in the second term. See the other summary.)
“Fantasy has failed to provide sufficient evidence to rebut the presumption that Blackwell was an author of the song. Accordingly, the Court finds that the song was not a ‘work made for hire.’” Fantasy had apparently assumed that Blackwell could be regarded as someone who had created the song as a “work for hire” because “At the time, Blackwell was employed by Specialty Records, dba Venice Music, as an ‘artists and repertoire man.’ His primary responsibilities included finding material for artists to record, auditioning prospective talent, and overseeing the production of recordings.” Songwriting was apparently not among the jobs he was expected to do to earn his salary, so it should be concluded that the songwriting he did do was on his own initiative and that he had a right to payment.
Cases Summarized in Other Sections
|Alice T. Yardley
vs Houghton Mifflin Co., Inc. (launch this) concerned a copyright renewal registration made by the heir of an artist who had created a mural as a “work for hire.”
Von Tilzer vs Jerry Vogel Music Co. (launch this) had rights to the renewal term in the song “Down on the Farm” being acquired from the widow of the lyricist, yet because the lyricist had worked on a work for-hire basis, she had no rights in the second term.
The Copyright Registration and Renewal Information Chart and Web Site
© 2007,2009 David P. Hayes