Ownership of a copyright in a work is not the same as ownership of the work itself. You can sell your original work of art, while keeping the copyright which gives you the exclusive right to to copy, publically distribute or perform the work or prepare derivative works based upon the original. These rights come in existence upon the creation of the work.
If the work is a "work for hire," it is the property of the client or employer and the creator or artist shall have no rights whatsoever in the work. Even if some third person reproduced the work without the consent of the copyright owner, the artist would have no right to prevent such use if he created a work for hire, since that right belongs only to the client or employer.
Your work can be classified as a work for hire in one of two ways. If you are an employee and your artwork is prepared for your employer within the scope of your employment, the artwork will be work for hire. An example of work that may be created within the scope of your employment could be work you create as a salaried employee of a greeting card company, animation company or advertising agency. In these cases you might have no rights at all, other than those granted by your employment contract, if you have one.
If, on the other hand, if the work was not created within the scope of your employment, it might not be considered work for hire. If you are employed as a bank teller and create artwork that may be used for an advertising campaign for the bank, that artwork arguably was created outside of the scope of your employment.
The other way for you to end up in a work for hire situation is if you are specially ordered or commissioned to create a work that fits one of several categories defined by The U.S. Copyright Act and there is a written agreement, signed by the parties involved, that the work shall be considered a work for hire. These categories include:
*Contribution to a collective work, such as a magazine, anthology or encyclopedia;
*Contribution to a motion picture or other audiovisual work;
*Supplementary work, which is a work prepared to supplement that of another author, for various purposes such as illustration, explanation or comment;
*An instructional text prepared for use in systematic instructional activities.
There are ways to avoid having your work be classified as work for hire. One way is not to sign a contract that includes a work for hire provision. If you are not sure what your status is under a proposed contract you might prevent a work for hire by including the following clause or something similar:
"No work prepared by Artist for Client, pursuant to this or any other agreement, shall be considered a work for hire as defined by sections 101 and 201(b) of the Copyright Act of 1976."
When you create a work for hire, you have no rights other than those created by a written and signed agreement. Otherwise, you have no reproduction rights or other residual rights. You are not entitled to stop others from infringing on the copyright in your work. Even the state legislation created to benefit the creators of artwork may not apply to the artist who creates works for hire.
It is quite obvious that it is not in your best interest to have your work considered a work for hire. The best way to avoid it is by a clearly written and signed contract executed before your artwork is prepared, whether or not you are an employee.
If you create artwork on commission without a written agreement or the artwork does not fit within one of the specific categories enumerated under section 101(2) of the Act, then it will not be made-for-hire under that section. In that event, if the person who commissioned the work wants to prove it was made-for-hire, the question will be whether the artist is an employee under section 101(1). An obvious case of employment might arise when an artist works for a company in the company's studio with materials provided by the company. The artist would also be paid a salary and all work would be performed under the complete control and supervision of company employees. There would be no question as to who is the owner of the artwork in this situation.
The problem of determining whether a work is made-for-hire stems from the fact that the Copyright Act does not define the term "employee." In 1989, The United States Supreme Court made a determination that the federal common law of agency, with reference to a legal treatise called the Restatement (2d) of Agency, provides the proper definition of an employee under the Copyright Act. In the recent case of Community For Creative Non-Violence v. Reid, 109 S.Ct. 2166 (1989), the Court cited a number of factors to be considered when ruling upon the existence of an employer-employee relationship. In this particuler case, The Court decided that the artist, (Reid) was an independent contractor and not an employee of the Community for Creative Non- Violence (CCNV) and that decision was based upon the following factors:
3. He supplied his own tools;
4. He worked in Baltimore without daily supervision from CCNV in Washington, D.C.;
5. He was retained for a relatively short period of time;
6. He had absolute freedom to decide what hours he worked in order to meet his deadline;
7. He had full discretion as to the hiring and paying of assistants;
8. CCNV had no right to assign additional projects to Reid;
9. CCNV paid Reid in a manner used for independent contractors;
10. It was not engaged regularly in the business of creating sculpture;
11. It did not pay payroll or social security taxes, employee benefits or contribute to unemployment insurance or workers compensation.
In any event, in all nonemployment situations you should sign a contract before any artwork is submitted to a client or before you agree to prepare a commissioned work as such a contract can, by its terms, obviate the afore-mentioned factors and prevent the existence of an employment relationship.
It should be noted that when the CCNV case went back to the trial court on futher factual issues, the U.S. District Court decided that when one person holds ownership and possession of an artwork and another holds the reproduction rights, the owner of the work may not refuse access to the work for purposes of making a master mold from which to make reporductions. The right of access to the work is limited in nature though, and after the mold is made, the owner of the reproduction rights shall no longer be permitted access to the original work.
First Published Version Copyright 1990-1991 David M. Spatt
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THIS WEBSITE CANNOT BE USED AS A SUBSTITUTE FOR SOUND LEGAL ADVICE FROM A COMPETENT ARTS OR ENTERTAINMENT ATTORNEY. In the event of a legal problem or question, specific legal consultation is advised. This website is intended only as a means of educating arts organizations and artists of all disciplines as to their potential legal rights and liabilities. The information provided is made available with the understanding that neither OSLA nor the office of David M. Spatt is engaging in the rendering of legal counsel.
copyright 1997 David M. Spatt, All rights reserved
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