Community for Creative
Non-Violence v. Reid
490 U.S. 730 (1989)
490 U.S. 730 (1989)
FACTS
-Artist and organization that hired the artist to prepare a sculpture contest the ownership of the © in that work.
-D agreed to create a sculpture for P, parties did not sign a written agreement, neither party mentioned ©. P wanted to take the sculpture on tour, D demanded that they fix it up (D had it at this time), P refused, D filed for ©, P did the same, sued for return of sculpture and to determine copyright ownership.
ISSUE
-Is the statue a work made for hire?
HOLDING
-Court holds that statue is not a work made for hire.
ANALYSIS
-Author is the party who actually translates an idea into a fixed, tangible expression entitled to © protection. The act carves out an important exception for a work made for hire.Written Agreement to the Contrary?
-Artist and organization that hired the artist to prepare a sculpture contest the ownership of the © in that work.
-D agreed to create a sculpture for P, parties did not sign a written agreement, neither party mentioned ©. P wanted to take the sculpture on tour, D demanded that they fix it up (D had it at this time), P refused, D filed for ©, P did the same, sued for return of sculpture and to determine copyright ownership.
ISSUE
-Is the statue a work made for hire?
HOLDING
-Court holds that statue is not a work made for hire.
ANALYSIS
-Author is the party who actually translates an idea into a fixed, tangible expression entitled to © protection. The act carves out an important exception for a work made for hire.Written Agreement to the Contrary?
-If the work is for
hire, the employer or other person for whom the work was prepared is
considered the author and owns the © unless there is a written agreement
to the contrary.
-Classifying a work made for hire determines not only the initial ownership of its copyright, but also the copyright’s duration and the owners renewal rights, termination rights, and right to import certain goods bearing the ©. Sculpture fit into the 9 categories of the subsection?
-Classifying a work made for hire determines not only the initial ownership of its copyright, but also the copyright’s duration and the owners renewal rights, termination rights, and right to import certain goods bearing the ©. Sculpture fit into the 9 categories of the subsection?
Sculpture does not fit
within any of the 9 categories of “specially ordered or commissioned”
works enumerated in that subsection, and no agreement between the
parties establishes the particular sculpture as a work made for hire.
-Congress intended to provide two mutually exclusive ways for works to acquire “work for hire” status: one for employees and the other for independent contractors. Further, only enumerated categories of commissioned works may be accorded work for hire status. Hiring party's right to control the product test is not determinative.
-Congress intended to provide two mutually exclusive ways for works to acquire “work for hire” status: one for employees and the other for independent contractors. Further, only enumerated categories of commissioned works may be accorded work for hire status. Hiring party's right to control the product test is not determinative.
Is the hired party an employee under the
general common law of agency?-Consider
the hiring party’s right to control the manner and means by which the
product is accomplished.
-Consider factors such
as skill required; source of instrumentalities and tools; the location
of the work; duration of the relationship b/t 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; method of payment (etc. p. 314). No one of these factors is
determinative.
-Court finds that D was independent contractor, however, court also states that P and D may be joint authors if they prepared the work with the intention that their contribution be merged into inseparable or interdependent parts of a unitary whole. If so, they would be co-owners of the © in the sculpture.
-Court finds that D was independent contractor, however, court also states that P and D may be joint authors if they prepared the work with the intention that their contribution be merged into inseparable or interdependent parts of a unitary whole. If so, they would be co-owners of the © in the sculpture.
Note: Every case since Ried that has applied the test has found the hired party to be an independent contractor where the hiring party failed to extend benefits or pay social security taxes.
Link to case: 490 U.S. 730 (1989)
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