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Copyright question
Just for you Theda! Held: 1. To determine whether a work is a "work made for hire" within the § 101 definition, a court should first apply general common law of agency principles to ascertain whether the work was prepared by an employee or an independent contractor, and, depending upon the outcome, should then apply either § 101(1) or § 101(2). Although the Act nowhere defines "employee," "employment," or related terms, it must be inferred that Congress meant them in their settled, common-law sense, since nothing in the text of the work for hire provisions indicates that those terms are used to describe anything other than the conventional relation of employer and employee. On the contrary, Congress' intent to incorporate agency law definitions is suggested by § 101(1)'s use of the term "scope of employment," a widely used agency law term of art. Moreover, the general common law of agency must be relied on, rather than the law of any particular State, [104 L Ed 2d 819] since the Act is expressly intended to create a federal law of uniform, nationwide application by broadly preempting state statutory and common-law copyright regulation. Petitioners' argument that a work is "prepared by an employee within the scope of his or her employment" whenever the hiring party retains the right to control, or actually controls, the work is inconsistent with the language and legislative history of the work for hire provisions, and would distort the provisions' structure, which views works by employees and commissioned works by independent contractors as mutually exclusive entities. 2. The sculpture in question is not a "work made for hire" within the meaning of § 101. Reid was an independent contractor rather than a § 101(1) "employee" since, although CCNV members directed enough of the work to ensure that the statue met their specifications, all other relevant circumstances weigh heavily against finding an employment relationship. Reid engages in a skilled occupation; supplied his own tools; worked in Baltimore without daily supervision from Washington; was retained for a relatively short period of time; had absolute freedom to decide when and how long to work in order to meet his deadline; and had total discretion in hiring and paying assistants. Moreover, CCNV had no right to assign additional projects to Reid; paid him in a manner in which independent contractors are often compensated; did not engage regularly in the business of creating sculpture or, in fact, in any business; and did not pay payroll or Social Security taxes, provide any employee benefits, or contribute to unemployment insurance or workers' compensation funds. Furthermore, as petitioners concede, the work in question does not satisfy the terms of § 101(2). 3. However, CCNV nevertheless may be a joint author of the sculpture and, thus, a co-owner of the copyright under § 201(a), if, on remand, the District Court determines that the parties prepared the work with the intention that their contributions be merged into inseparable or interdependent parts of a unitary whole For those of the less literate sense, Employee is not a photographer shooting a model, regardless if model paid employee or not. You pointed it out Theda. Now, You want to try and make me look bad because you do not agree, Fine. I can accept it because no matter what you seem to have this thing about it. You lie. You twist words. You were the one that corrected me. Go look at the thread. Show me ANY model that does everything listed in Section 2 when hiring a photographer! Jul 15 05 11:17 am Link Posted by Ty Simone: No, I pointed you to this, which defines the terms under which work is considered work for hire. Nothing indicates work for hire can't be a one-time arrangement. If I recall correctly, I was simply trying to explain to you that not every piece of contracted work is work for hire. Jul 15 05 11:18 am Link Posted by theda: Posted by Ty Simone: No, I pointed you to this, which defines the terms under which work is considered work for hire. Nothing indicates work for hire can't be a one-time arrangement. If I recall correctly, I was simply trying to explain to you that not every piece of contracted work is work for hire. No Theda. You pointed to THAT section in the Case of the Sculpture. Jul 15 05 11:20 am Link You don't own the copyright if you are asked to create a "work for hire." It has nothing to do with how often you do it. That is unrelated. Jul 15 05 11:21 am Link Work for hire can cover one day or many years. Jul 15 05 11:23 am Link Posted by Ty Simone: Actually, I pointed to BOTH. That section you quoted applies to one specific situation. See section 101(1) for the criterea, none of which deal with duration fo contract or employment. Jul 15 05 11:25 am Link Well, I tell you two what. You go tell the courts that. In the case cited, The company asked a sculpture to create a piece for them. By your definition, Work for hire. The Company went to file the Copyright, as did the Sculpture. The lawsuits ensued, and the Court ruled as above. In order to be a work for hire, the person must be an employee in the conventional sense. I.e. You give benefits, payroll taxes etc... Read the findings. I will give you the gigalaw link as well. giglaw link here Funny how when I said before that this was possible, Theda jumped all over it and said NO NO NO! and Theda, the brief covers 101(2), if you read it. Jul 15 05 11:29 am Link Posted by theda: Posted by Ty Simone: Actually, I pointed to BOTH. That section you quoted applies to one specific situation. See section 101(1) for the criterea, none of which deal with duration fo contract or employment. HERE IS WHAT IT SAID IS THE MEANING UNDER 101!!! Get your story straight Theda! Jul 15 05 11:30 am Link Wow this is still going on? I see it moved to "Work for hire" now? In a work for hire would the copyright depend on who is doing the hiring that would depend on who owns the property/copyright? This is all i am asking on this, i gave up on this thread. Jul 15 05 11:31 am Link Now, I will readily admit that you can in your agreement call it a work for hire, in order to assume copyright, and in that case it can be a one time thing. But that is contractual in nature. You are using to the term to get the benefit within the contract. I am not debating that possibility as someone pointed out earlier, you can put anything in a contract. Jul 15 05 11:32 am Link LOL Sorry one more post: "The company asked a sculpture to create a piece for them." First from the above statement the "Sculpture" has no right to go for copyright for this item, he was hired to make it for the company. This is the same as if he was employed by them, the company has all rights to it. Jul 15 05 11:35 am Link I'm sorry if I mixed up the section 101(1) and 101(2). It is 101(2). Regardless, the section dealing with contracted labor defines specific instances in which contracted labor is considered work for hire, which your old sculture case did not meet. However, duration of employment was not one of those criterea. My story is straight minus one wee error, but your comprehension is very, very low. Jul 15 05 11:36 am Link Posted by Peter Dattolo: If you read above Peter, the courts have defined worked for hire to mean a statutory employee. Jul 15 05 11:36 am Link Posted by Peter Dattolo: The Court said otherwise. Jul 15 05 11:37 am Link Posted by theda: (2) a work specially ordered or commissioned for use as a contribution to a collective work, as a part of a motion picture or other audiovisual work, as a translation, as a supplementary work, as a compilation, as an instructional text, as a test, as answer material for a test, or as an atlas, if the parties expressly agree in a written instrument signed by them that the work shall be considered a work made for hire. Jul 15 05 11:39 am Link Without reading the decision, if the company had signed a contract with the artist that stated it was a "work for hire" they would have been fine. Jul 15 05 11:40 am Link Posted by Ty Simone: One case does not a law make. From the link. " 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. However, the court remanded for a determination whether the statue was jointly authored by CCNV and Reid, such that they were co-owners of the copyright under § 201(a)." Jul 15 05 11:41 am Link Posted by XtremeArtists: 100% correct Xtreme. Jul 15 05 11:41 am Link Posted by Mike Cummings: Posted by Ty Simone: One case does not a law make. From the link. " 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. However, the court remanded for a determination whether the statue was jointly authored by CCNV and Reid, such that they were co-owners of the copyright under § 201(a)." Mike, No one is arguing that you can not make a work for hire agreement, in writing, for a one time thing. Jul 15 05 11:45 am Link "Therefore a model that pays a photographer to do a portfolio shoot, unless she specifically states work for hire in the contract, or transfer of copyright, does not have a copyright claim." If a model contacted me for photos and paid me for a shoot i would assume she would have copyright over me. She came to me and is paying me for the photos. The way i see it is i woul dhave to negotiate with her to use those photos for my usage. "To answer the gist of your question, Your employer has the copyright ina work for hire situation." This is correct as i see it also but it also this includes Contractors, part time help, temp employment (kelly services as an example). These people fall into the catagory of "Employees" and any invention or benefit to that said company is the company property. The sculpture was actualy a "Temp" employee/contractor when they hired him to do the work. Ok no matter what is said im done on this thread, good day all. Jul 15 05 11:45 am Link Posted by Peter Dattolo: Peter, That is NOT what the Supreme Court said. Jul 15 05 11:48 am Link Posted by Peter Dattolo: Because you haven't taken the time to talk to an IP attorney. Jul 15 05 11:48 am Link Posted by Ty Simone: My high horse? You're the one that came out saying that work for hire can't be a one-time arrangement and I told you so. You made a false statement and attributed it to me. Now you're not arguing the point you made? So what the hell ARE you arguing? Jul 15 05 11:50 am Link X would this be correct if she was paying me for the photos/negatives and to "just" take them? This is what i was thinking when i wrote: "Posted by Peter Dattolo: If a model contacted me for photos and paid me for a shoot i would assume she would have copyright over me." Jul 15 05 11:52 am Link Posted by Ty Simone: Posted by Mike Cummings: Posted by Ty Simone: One case does not a law make. From the link. " 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. However, the court remanded for a determination whether the statue was jointly authored by CCNV and Reid, such that they were co-owners of the copyright under § 201(a)." Mike, No one is arguing that you can not make a work for hire agreement, in writing, for a one time thing. Has the Supreme Court ruled on this one? Point is in this case the court took into account how much control the paying party had. Was THIS case a work for hire. Did THESE people meet that standard. Find the genral rules for a Work For Hire and go by that. Seems to me the key to this one was the lack of agreement before hand on what the "employment" was and who owned the copyright. Jul 15 05 11:52 am Link To Recap, So Theda can not try to again make an issue because of her vendetta against me, which she has for some reason.... FOR PHOTOGRAPHERS: Unless a contract specifically states Work-For-Hire, OR you are an Employee of a Company where your Job is to Photograph, Like a staff photographer, Even if you get paid by the contractor, for copyright purposes it is NOT work-for-hire. Jul 15 05 11:52 am Link I'm just curious if the work for hire issue relates to Tyler's question at all... Jul 15 05 11:53 am Link Posted by Ty Simone: Seems reasonable to me. Jul 15 05 11:53 am Link Posted by Ty Simone: My vendetta aginst you? Jul 15 05 11:59 am Link Posted by theda: Posted by Ty Simone: My high horse? You're the one that came out saying that work for hire can't be a one-time arrangement and I told you so. You made a false statement and attributed it to me. Now you're not arguing the point you made? So what the hell ARE you arguing? Theda, We already said numerous times in threads that you can put anything you want in a contract. Jul 15 05 12:02 pm Link Posted by theda: Far be it for me to complain about thread hijacking. I just was wondering if I missed something. :-) Jul 15 05 12:02 pm Link Posted by XtremeArtists: Posted by theda: Far be it for me to complain about thread hijacking. I just was wondering if I missed something. :-) Blame Theda! Jul 15 05 12:03 pm Link Posted by XtremeArtists: Shhhh. we are going for the 500 mark. Jul 15 05 12:06 pm Link You reminded me, I wanted to stop posting at 1967, but Mystic 7 was so much fun I forgot. Now I have to start over. Jul 15 05 12:08 pm Link Posted by Ty Simone: Posted by XtremeArtists: Posted by theda: Far be it for me to complain about thread hijacking. I just was wondering if I missed something. :-) Blame Theda! She says he tried to have sex with you ... but you couldn't really call the "final product".. sex Jul 15 05 12:09 pm Link Posted by Ty Simone: Posted by theda: (2) a work specially ordered or commissioned for use as a contribution to a collective work, as a part of a motion picture or other audiovisual work, as a translation, as a supplementary work, as a compilation, as an instructional text, as a test, as answer material for a test, or as an atlas, if the parties expressly agree in a written instrument signed by them that the work shall be considered a work made for hire. but you did argue that ty, you said it was only possible under an employee/employer relationship and never as a one time occurrence. i tried to point out to you that work for hire being the nature of the work because of the existing employer/employee circumstances was only one form, not the ONLY form, the other form can come under a specific work for hire agreement, which can only be valid if signed b4 the fact, as spelled out in the work for hire section of the copyright law Jul 15 05 12:10 pm Link I gotta go to work.. Yeah piss test today... Anyhow I will check in later. I want to see this thread up to 20 pages when I get back... Come on guys I know you can do it. I have full confidence in you. Jul 15 05 12:13 pm Link Posted by XtremeArtists: Indirectly Yes... Jul 15 05 12:13 pm Link Posted by Ty Simone: No, I said a commissioned piece was not automatically considered work for hire. Jul 15 05 12:15 pm Link Posted by Aaron_H: Posted by Ty Simone: Posted by theda: (2) a work specially ordered or commissioned for use as a contribution to a collective work, as a part of a motion picture or other audiovisual work, as a translation, as a supplementary work, as a compilation, as an instructional text, as a test, as answer material for a test, or as an atlas, if the parties expressly agree in a written instrument signed by them that the work shall be considered a work made for hire. but you did argue that ty, you said it was only possible under an employee/employer relationship and never as a one time occurrence. i tried to point out to you that work for hire being the nature of the work because of the existing employer/employee circumstances was only one form, not the ONLY form, the other form can come under a specific work for hire agreement, which can only be valid if signed b4 the fact, as spelled out in the work for hire section of the copyright law No Aaron, We have said from early on that a Contract can say anything. Jul 15 05 12:15 pm Link |
