Chapter 5: Copyright Ownership and Authorship
A. Transfer of Copyright
Copyright is a form of property right, and is generally treated as such under the law. Ownership of the copyright initially vests with the work’s author or authors, but can subsequently be transferred to another, for example by assignment or inheritance.1 Alternatively, a copyright owner can license the copyright to others, either in part or in its entirety. For example, the owner of the copyright in a science fiction novel could grant one company a license to the right to produce a movie based on the book, and grant a second company a license to create a videogame based on the book, while the owner retains all rights to reproduce and distribute the novel in the form of a book.
A license can be nonexclusive or exclusive. In the case of a nonexclusive license, the licensor (i.e., the copyright owner) retains the right to grant licenses to other nonexclusive licensees. In the case of an exclusive license, the licensor agrees not to license the work to any other party; in some cases, an exclusive license can be the functional equivalent of an assignment of the copyright, i.e., a transfer of the copyright in its entirety. The Second Circuit has expressed it as follows:
There are two general categories of licenses: non-exclusive licenses, which permit licensees to use the copyrighted material and may be granted to multiple licensees; and exclusive licenses, which grant to the licensee the exclusive right—superior even to copyright owners’ rights—to use the copyrighted material in a manner as specified by the license agreement.
Davis v. Blige, 505 F.3d 90, 99 (2d Cir. 2007).
Section 204(a) of the Copyright Act requires that any transfer of copyright ownership, by exclusive license or assignment, must be in writing and signed by the copyright owner (or the owner’s agent). The signed writing requirement does not apply to nonexclusive licenses, which are not considered a transfer of copyright ownership. Section 204(a), which is applied in the next case excerpted in this book, Effects Assocs., recites:
A transfer of copyright ownership, other than by operation of law, is not valid unless an instrument of conveyance, or a note or memorandum of the transfer, is in writing and signed by the owner of the rights conveyed or such owner’s duly authorized agent.
Some things to consider when reading Effects Assocs.:
- The court’s straightforward application of § 204(a), which requires assignments to be in writing. The statute explicitly excludes nonexclusive licenses from this requirement, including implied nonexclusive licenses.
- The statutory basis for the exclusion of nonexclusive licenses from § 204(a).
- The rationale behind the court’s determination that there was an implied license.
- As a practical matter, the party that prevailed with respect to the allegation of copyright infringement.
- The fact that Cohen still has a cause of action for breach of contract. Why is he suing for copyright infringement rather than simply suing for breach of contract?
Effects Assocs., Inc. v. Cohen
908 F.2d 555 (9th Cir. 1990)
KOZINSKI, Circuit Judge:
What we have here is a failure to compensate. Larry Cohen, a low-budget horror movie mogul, paid less than the agreed price for special effects footage he had commissioned from Effects Associates. Cohen then used this footage without first obtaining a written license or assignment of the copyright; Effects sued for copyright infringement. We consider whether a transfer of copyright without a written agreement, an arrangement apparently not uncommon in the motion picture industry, conforms with the requirements of the Copyright Act.
Facts
This started out as a run-of-the-mill Hollywood squabble. Defendant Larry Cohen wrote, directed and executive produced “The Stuff,” a horror movie with a dash of social satire: Earth is invaded by an alien life form that looks (and tastes) like frozen yogurt but, alas, has some unfortunate side effects—it’s addictive and takes over the mind of anyone who eats it. Marketed by an unscrupulous entrepreneur, the Stuff becomes a big hit. An industrial spy hired by ice cream manufacturers eventually uncovers the terrible truth; he alerts the American people and blows up the yogurt factory, making the world safe once again for lovers of frozen confections.
In cooking up this gustatory melodrama, Cohen asked Effects Associates, a small special effects company, to create footage to enhance certain action sequences in the film. In a short letter dated October 29, 1984, Effects offered to prepare seven shots, the most dramatic of which would depict the climactic explosion of the Stuff factory. Cohen agreed to the deal orally, but no one said anything about who would own the copyright in the footage.
Cohen was unhappy with the factory explosion Effects created, and he expressed his dissatisfaction by paying Effects only half the promised amount for that shot. Effects made several demands for the rest of the money (a little over $8,000), but Cohen refused. Nevertheless, Cohen incorporated Effects’s footage into the film and turned it over to New World Entertainment for distribution. Effects then brought this copyright infringement action, claiming that Cohen (along with his production company and New World) had no right to use the special effects footage unless he paid Effects the full contract price.
The district court granted summary judgment to Cohen on the infringement claim, holding that Effects had granted Cohen an implied license to use the shots. We review the district court’s grant of summary judgment de novo.
Discussion
A. Transfer of Copyright Ownership
The law couldn’t be clearer: The copyright owner of “a motion picture or other audiovisual work” has the exclusive rights to copy, distribute or display the copyrighted work publicly. 17 U.S.C. § 106 (1988). While the copyright owner can sell or license his rights to someone else, section 204 of the Copyright Act invalidates a purported transfer of ownership unless it is in writing. 17 U.S.C. § 204(a) (1988). Here, no one disputes that Effects is the copyright owner of the special effects footage used in “The Stuff,” and that defendants copied, distributed and publicly displayed this footage without written authorization.
Cohen suggests that section 204’s writing requirement does not apply to this situation, advancing an argument that might be summarized, tongue in cheek, as: Moviemakers do lunch, not contracts. Cohen concedes that “[i]n the best of all possible legal worlds” parties would obey the writing requirement, but contends that moviemakers are too absorbed in developing “joint creative endeavors” to “focus upon the legal niceties of copyright licenses.” Thus, Cohen suggests that we hold section 204’s writing requirement inapplicable here because “it [i]s customary in the motion picture industry … not to have written licenses.” To the extent that Cohen’s argument amounts to a plea to exempt moviemakers from the normal operation of section 204 by making implied transfers of copyrights “the rule, not the exception,” we reject his argument.
Common sense tells us that agreements should routinely be put in writing. This simple practice prevents misunderstandings by spelling out the terms of a deal in black and white, forces parties to clarify their thinking and consider problems that could potentially arise, and encourages them to take their promises seriously because it’s harder to backtrack on a written contract than on an oral one. Copyright law dovetails nicely with common sense by requiring that a transfer of copyright ownership be in writing. Section 204 ensures that the creator of a work will not give away his copyright inadvertently and forces a party who wants to use the copyrighted work to negotiate with the creator to determine precisely what rights are being transferred and at what price. Most importantly, section 204 enhances predictability and certainty of copyright ownership—“Congress’ paramount goal” when it revised the Act in 1976. Community for Creative Non–Violence, 109 S.Ct. at 2177. Rather than look to the courts every time they disagree as to whether a particular use of the work violates their mutual understanding, parties need only look to the writing that sets out their respective rights.
Section 204’s writing requirement is not unduly burdensome; it necessitates neither protracted negotiations nor substantial expense. The rule is really quite simple: If the copyright holder agrees to transfer ownership to another party, that party must get the copyright holder to sign a piece of paper saying so. It doesn’t have to be the Magna Charta; a one-line pro forma statement will do.
[Section 101’s definition a “work made for hire”] specifically addresses the movie and book publishing industries, affording moviemakers a simple, straightforward way of obtaining ownership of the copyright in a creative contribution—namely, a written agreement. The Supreme Court and this circuit, while recognizing the custom and practice in the industry, have refused to permit moviemakers to sidestep section 204’s writing requirement. Accordingly, we find unpersuasive Cohen’s contention that section 204’s writing requirement, which singles out no particular group, somehow doesn’t apply to him. As section 204 makes no special allowances for the movie industry, neither do we.
B. Nonexclusive Licenses
Although we reject any suggestion that moviemakers are immune to section 204, we note that there is a narrow exception to the writing requirement that may apply here. Section 204 provides that all transfers of copyright ownership must be in writing; section 101 defines transfers of ownership broadly, but expressly removes from the scope of section 204 a “nonexclusive license.” The sole issue that remains, then, is whether Cohen had a nonexclusive license to use plaintiff’s special effects footage.
The leading treatise on copyright law states that “[a] nonexclusive license may be granted orally, or may even be implied from conduct.” 3 M. Nimmer & D. Nimmer, Nimmer on Copyright § 10.03[A], at 10–36 (1989). Cohen relies on the latter proposition; he insists that, although Effects never gave him a written or oral license, Effects’s conduct created an implied license to use the footage in “The Stuff.”
Cohen relies largely on our decision in Oddo v. Ries, 743 F.2d 630 (9th Cir.1984). There, we held that Oddo, the author of a series of articles on how to restore Ford F–100 pickup trucks, had impliedly granted a limited non-exclusive license to Ries, a publisher, to use plaintiff’s articles in a book on the same topic. We relied on the fact that Oddo and Ries had formed a partnership to create and publish the book, with Oddo writing and Ries providing capital. Oddo prepared a manuscript consisting partly of material taken from his prior articles and submitted it to Ries. Because the manuscript incorporated pre-existing material, it was a derivative work; by publishing it, Ries would have necessarily infringed the copyright in Oddo’s articles, unless Oddo had granted him a license. We concluded that, in preparing and handing over to Ries a manuscript intended for publication that, if published, would infringe Oddo’s copyright, Oddo “impliedly gave the partnership a license to use the articles insofar as they were incorporated in the manuscript, for without such a license, Oddo’s contribution to the partnership venture would have been of minimal value.”
The district court agreed with Cohen, and we agree with the district court: Oddo controls here. Like the plaintiff in Oddo, Effects created a work at defendant’s request and handed it over, intending that defendant copy and distribute it. To hold that Effects did not at the same time convey a license to use the footage in “The Stuff” would mean that plaintiff’s contribution to the film was “of minimal value,” a conclusion that can’t be squared with the fact that Cohen paid Effects almost $56,000 for this footage. Accordingly, we conclude that Effects impliedly granted nonexclusive licenses to Cohen and his production company to incorporate the special effects footage into “The Stuff” and to New World Entertainment to distribute the film.
Conclusion
We affirm the district court’s grant of summary judgment in favor of Cohen and the other defendants. We note, however, that plaintiff doesn’t leave this court empty-handed. Copyright ownership is comprised of a bundle of rights; in granting a nonexclusive license to Cohen, Effects has given up only one stick from that bundle—the right to sue Cohen for copyright infringement. It retains the right to sue him in state court on a variety of other grounds, including breach of contract. Additionally, Effects may license, sell or give away for nothing its remaining rights in the special effects footage. Those rights may not be particularly valuable, of course: “The Stuff” was something less than a blockbuster, and it remains to be seen whether there’s a market for shots featuring great gobs of alien yogurt oozing out of a defunct factory. On the other hand, the shots may have much potential for use in music videos. In any event, whatever Effects chooses to do with the footage, Cohen will have no basis for complaining. And that’s an important lesson that licensees of more versatile film properties may want to take to heart.
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Check Your Understanding – Effects Assocs.
Question 1. Why did the court reject Cohen’s argument that Effects Assocs. had orally transferred ownership of the special effects footage to Cohen?
Question 2. Why did the court find that Cohen had an implied license to use the copyrighted special effects footage?
Question 3. True or false: Because Cohen has an implied license to the copyrighted special effects footage, Effects will not be able to license or sell the footage to another movie producer.
Determining authorship can be a simple matter in the case of a solo author, such as the sole author of a novel or musical work. However, things can get quite complicated when multiple parties collaborate in the creation of an expressive work, or when the work was created by someone who was hired by someone else to create the work, i.e., a “work made for hire.” These two scenarios are addressed below.
B. Joint Authorship
The Copyright Act defines a joint work as “a work prepared by two or more authors with the intention that their contributions be merged into inseparable or interdependent parts of a unitary whole.” 17 U.S.C. § 101. On its face, this definition, in combination with the low bar for originality set forth in cases like Feist, would seem to confer authorship on even those who make a relatively small contribution to the copyrighted work. Consider, for example, the production of a major motion picture. A large number of individuals contribute to the making of the movie, all with the intent that their contributions be merged into the final product. Are all of these contributors joint authors, so long as they made a contribution that meets the “modicum of creativity” standard set forth in Feist? If so, they would be co-owners in the copyright to the movie (§ 201(a) of the Copyright Act provides that “[t]he authors of a joint work are co-owners of copyright in the work.”).
If that were the case, the practical consequences would be enormous. The co-owners of copyright in a work each hold an equal and undivided interest in the work. As such, each author shares the right to commercially exploit the work, including the right to unilaterally grant nonexclusive licenses to the work to third parties, without the consent of other authors, subject only to a duty to account to the other authors for any profits received. Imagine the consequences if each contributor to a major motion picture was able to independently exploit and license the movie—as a practical matter, the value of the copyright would be substantially weakened, and with it the incentive for investing in creative endeavors of that type.
Courts have addressed this concern by interpreting the statute in a manner that generally limits authorship to the “dominant author” behind a copyrighted work (sometimes referred to as the “mastermind”), along with those individuals (if any) that the dominant author intended to include as co-authors. Note that the Copyright Act provides no explicit support for a requirement that the parties intend to be co-authors—the statute simply requires an intent that their contributions be merged. But for public policy reasons, a number of courts have interpreted the statute in a manner that substantially precludes contributors to the work, other than those the dominant author intends, from claiming ownership as co-authors. We see an example of this in the following decision.
Some things to consider when reading Thomson:
- The Copyright Act defines a “joint work” as “a work prepared by two or more authors with the intention that their contributions be merged into inseparable or interdependent parts of a unitary whole.” Note that while the statute literally requires an “intent to merge contributions,” in Thomson, the court adopts the Childress interpretation of the statute, i.e., that the statute requires an “intent of co-authorship.” Is this interpretation supported by the plain language of the statute? What is the policy behind the Childress interpretation? Do you agree with this interpretation?
- The two prongs of the Childress test for co-authorship. Which prong did Thomson fail to establish, and why?
- The consequence if Thomson had prevailed in her allegation that she had copyright in some of her contributions to the play. Why did the court decline to address the issue?
Thomson v. Larson
147 F.3d 195 (2d Cir. 1998)
CALABRESI, Circuit Judge:
Plaintiff-appellant Lynn Thomson claims that, along with principal playwright Jonathan Larson, she co-authored a “new version” of the critically acclaimed Broadway musical Rent. Since Thomson and Larson did not specify their respective rights by contract, this case raises two issues: (1) whether Rent qualifies as a statutory “joint work,” co-authored by Thomson; and (2) whether, even if Thomson is not deemed a co-author, she automatically retains exclusive copyright interests in the material she contributed to the work. The first question is squarely answered by the nuanced co-authorship test announced in Childress v. Taylor, 945 F.2d 500 (2d Cir.1991), and, on that basis, we affirm the district court’s conclusion that Thomson is not a co-author of Rent. The second question—ownership of a copyright (in the absence of any written contract) in a “non-co-author’s” contribution to a work—was not addressed in Childress. Because Thomson did not plead infringement of any such putative copyright interest, however, this issue is not properly before us, and so we do not decide it.
BACKGROUND
The facts given below and found by the district court are essentially uncontested.
Rent, the Pulitzer Prize and Tony Award-winning Broadway modern musical based on Puccini’s opera La Bohème, began in 1989 as the joint project of Billy Aronson and composer Jonathan Larson. Aronson and Larson collaborated on the work until their amicable separation in 1991. At that time, Larson obtained Aronson’s permission to develop the play on his own. By written agreement, Larson promised that the title would always be “RENT a rock opera by Jonathan Larson. Original concept and additional lyrics by Billy Aronson.” In return, Aronson agreed that he would “not … be considered [an] active collaborator or co-author of RENT.”
In the summer of 1992, Larson’s Rent script was favorably received by James Nicola, Artistic Director of the New York Theatre Workshop (“NYTW”), a non-profit theater company in the East Village. Larson continued to develop and revise the “workshop version” of his Rent script. In the spring of 1993, Nicola urged Larson to allow the NYTW to hire a playwright or a bookwriter to help revamp the storyline and narrative structure of the play. But Larson “absolutely, vehemently and totally rejected [Nicola’s] suggestion of hiring a bookwriter” and “was insistent on making RENT entirely his own project.” Larson received a grant in the spring of 1994 to pay for a workshop production of Rent, which was presented to the public in the fall of 1994 in a series of ten staged performances produced by the NYTW and directed by Michael Greif. “[T]he professional consensus concerning the show, after the studio production, was that it was, at a minimum, very promising and that it needed a great deal of work.” Artistic Director Nicola once again suggested to Larson that he consider working with a bookwriter, which Larson “adamantly and steadfastly refused, consistently emphasizing his intention to be the only author of RENT.”
In May 1995, in preparation for Rent ‘s off-Broadway opening scheduled for early 1996, Larson agreed to the NYTW’s hiring of Lynn Thomson, a professor of advanced playwrighting at New York University, as a dramaturg2 to assist him in clarifying the storyline of the musical. Thomson signed a contract with the NYTW, in which she agreed to provide her services with the workshop production from May 1, 1995, through the press opening, scheduled for early February of 1996. The agreement stated that Thomson’s “responsibilities shall include, but not be limited to: Providing dramaturgical assistance and research to the playwright and director.” In exchange, the NYTW agreed to pay “a fee” of $2000, “[i]n full consideration of the services to be rendered” and to provide for billing credit for Thomson as “Dramaturg.” The Thomson/NYTW agreement was silent as to any copyright interests or any issue of ownership with respect to the final work.
In the summer and fall of 1995, Thomson and Larson worked extremely intensively together on the show. For the most part, the two worked on the script alone in Larson’s apartment. Thomson testified that revisions to the text of Rent didn’t begin until early August 1995. Larson himself entered all changes directly onto his computer, where he kept the script, and Thomson made no contemporaneous notes of her specific contributions of language or other structural or thematic suggestions. Thomson alludes to the “October Version” of Rent as the culmination of her collaborative efforts with Larson. That new version was characterized by experts as “a radical transformation of the show.”
A “sing-through” of the “October Version” of Rent took place in early November 1995. And on November 3, 1995, Larson signed a contract with the NYTW for ongoing revisions to Rent. This agreement identified Larson as the “Author” of Rent and made no reference to Thomson. The contract incorporated by reference an earlier draft author’s agreement that set forth the terms that would apply if the NYTW opted to produce Rent. The earlier draft author’s agreement gave Larson approval rights over all changes in text, provided that any changes in text would become his property, and assured him billing as “sole author.”
The final dress rehearsal was held on January 24, 1996. Just hours after it ended, Larson died suddenly of an aortic aneurysm. Over the next few weeks, Nicola, Greif, Thomson, and musical director Tim Weil worked together to fine-tune the script. The play opened off-Broadway on February 13, 1996, to rave reviews. On February 23, Rent‘s move to Broadway was announced. Since its opening on Broadway on April 29, 1996, the show has been “an astounding critical, artistic, and commercial success.”
Before the Broadway opening, Thomson, in view of her contributions to Rent, sought compensation and title page dramaturgical credit from the Broadway producers. And on April 2, 1996, she signed a contract in which the producers agreed to pay her $10,000 plus a nominal $50/ week for her dramaturgical services. Around the same time, upon the producers’ advice, Thomson approached Allan S. Larson, Nanette Larson, and Julie Larson McCollum (“Larson Heirs”), the surviving members of Jonathan Larson’s family, to request a percentage of the royalties derived from the play. In a letter to the Larson family, dated April 8, 1996, Thomson stated that she believed Larson, had he lived, would have offered her a “small percentage of his royalties to acknowledge the contribution I made.” In reply, the Larson Heirs offered Thomson a gift of 1% of the author’s royalties. Negotiations between Thomson and the Larson Heirs, however, broke down.
After the parties failed to reach a settlement, Thomson brought suit against the Larson Heirs, claiming that she was a co-author of Rent and that she had never assigned, licensed, or otherwise transferred her rights. Thomson sought declaratory relief and a retroactive and on-going accounting under the Copyright Act. Specifically, she asked that the court declare her a “co-author” of Rent and grant her 16% of the author’s share of the royalties.3
A bench trial was held in the United States District Court for the Southern District of New York (Lewis A. Kaplan, Judge ) from July 18–23, 1997. In a decision rendered from the bench, Judge Kaplan concluded that Thomson was not a joint author of Rent and dismissed the remainder of Thomson’s complaint.
On appeal, Thomson concedes that she has “virtually no disagreement with the District Court’s findings with respect to what happened between her and Jon Larson, or with respect to the evidence of Larson’s intent.” Instead, the focus of Thomson’s appeal is on whether the district court correctly applied the Childress test of co-authorship, and, secondarily, whether the district court’s declaration that Thomson is not a co-author nevertheless means that she retains exclusive copyright interests in any material that she contributed to the work.
DISCUSSION
The district court properly defined the principal question in this case as: “not whether Lynn Thomson made a great contribution to the show. It is not whether she has been or ought to be compensated differently than she has been compensated. It is about whether what happened between Lynn Thomson and Jon Larson met the statutory definition as it has been construed by the higher courts of a joint work.” In analyzing this issue, the district court made numerous findings of fact and then applied the Childress test to these facts.
I. THOMSON’S CO-AUTHORSHIP CLAIM
A. Statutory Definition of “Joint Work”
Thomson’s request for a declaratory judgment establishing her co-authorship under the Copyright Act of 1976, 17 U.S.C. §§ 101 et seq., requires us to interpret and apply the copyright ownership provisions of the Act. The Copyright Act defines a “joint work” as “a work prepared by two or more authors with the intention that their contributions be merged into inseparable or interdependent parts of a unitary whole.” 17 U.S.C. § 101 (1994). The touchstone of the statutory definition “is the intention at the time the writing is done that the parts be absorbed or combined into an integrated unit.”
Joint authorship entitles the co-authors to equal undivided interests in the whole work—in other words, each joint author has the right to use or to license the work as he or she wishes, subject only to the obligation to account to the other joint owner for any profits that are made. See 17 U.S.C. § 201(a); Childress, 945 F.2d at 508; Community for Creative Non–Violence v. Reid, 846 F.2d 1485, 1498 (D.C.Cir.1988) (“Joint authors co-owning copyright in a work are deemed to be tenants in common, with each having an independent right to use or license the copyright, subject only to a duty to account to the other co-owner for any profits earned thereby.”).
B. Childress Requirements
In Childress v. Taylor, our court interpreted this section of the Act and set forth “standards for determining when a contributor to a copyrighted work is entitled to be regarded as a joint author” where the parties have failed to sign any written agreement dealing with coauthorship. While the Copyright Act states only that co-authors must intend that their contributions “be merged into … a unitary whole,” in Childress, Judge Newman explained why a more stringent inquiry than the statutory language would seem to suggest is required:
[A]n inquiry so limited would extend joint author status to many persons who are not likely to have been within the contemplation of Congress. For example, a writer frequently works with an editor who makes numerous useful revisions to the first draft, some of which will consist of additions of copyrightable expression. Both intend their contributions to be merged into inseparable parts of a unitary whole, yet very few editors and even fewer writers would expect the editor to be accorded the status of joint author, enjoying an undivided half interest in the copyright in the published work.
The facts of Childress highlighted this concern with “overreaching” contributors. Actress Clarice Taylor wrote a script based on the life of legendary comedienne Jackie “Moms” Mabley, but Taylor was unable to get it produced as a play. Taylor convinced playwright Alice Childress to rescue the project by writing a new script. After Childress’ completion of the script, Taylor took a copy of Childress’ copyrighted play and produced it at another theater without permission. Childress sued Taylor for copyright infringement, and Taylor asserted a defense of co-authorship.
The court concluded that there was “no evidence that [Taylor’s contribution] ever evolved into more than the helpful advice that might come from the cast, the directors, or the producers of any play.” On that basis, the court upheld a grant of summary judgment for Childress.
The potential danger of allowing anyone who makes even a minimal contribution to the writing of a work to be deemed a statutory co-author—as long as the two parties intended the contributions to merge—motivated the court to set forth a two-pronged test. A co-authorship claimant bears the burden of establishing that each of the putative co-authors (1) made independently copyrightable contributions to the work; and (2) fully intended to be co-authors. The court attempted to strike a balance between ensuring that true collaborators in the creative process are accorded the perquisites of co-authorship, while at the same time, guarding against the risk that a sole author is denied exclusive authorship status simply because another person renders some form of assistance.
1. Independently Copyrightable Contributions
Childress held that collaboration alone is not sufficient to establish joint authorship. Rather, the contribution of each joint author must be independently copyrightable. It noted that this is “the position taken by the case law and endorsed by the agency administering the Copyright Act.”
Without making specific findings as to any of Thomson’s claims regarding lyrics or other contributions, the district court concluded that Thomson “made at least some non-de minimis copyrightable contribution,” and that Thomson’s contributions to the Rent libretto were “certainly not zero.” Once having said that, the court decided the case on the second Childress prong—mutual intent of co-authorship. It hence did not reach the issue of the individual copyrightability of Thomson’s varied alleged contributions (plot developments, thematic elements, character details, and structural components).
2. Intent of the Parties
a. Mutual Intent Requirement
Childress mandates that the parties “entertain in their minds the concept of joint authorship.” This requirement of mutual intent recognizes that, since coauthors are afforded equal rights in the co-authored work, the “equal sharing of rights should be reserved for relationships in which all participants fully intend to be joint authors.”
The Childress rule of mutual co-authorship intent has subsequently been followed in this circuit and elsewhere. See, e.g., Erickson v. Trinity Theatre, Inc., 13 F.3d 1061, 1068–69 (7th Cir.1994) (adopting Childress, and noting that “reliance on collaboration alone … would be incompatible with the clear statutory mandate” that there be intent to create a joint work).
Childress and its progeny, however, do not explicitly define the nature of the necessary intent to be co-authors. The court stated that “[i]n many instances, a useful test will be whether, in the absence of contractual arrangements concerning listed authorship, each participant intended that all would be identified as co-authors.” But it is also clear that the intention standard is not strictly subjective. In other words, co-authorship intent does not turn solely on the parties’ own words or professed state of mind. Rather, the Childress court suggested a more nuanced inquiry into factual indicia of ownership and authorship, such as how a collaborator regarded herself in relation to the work in terms of billing and credit, decisionmaking, and the right to enter into contracts. In this regard, the court stated that “[t]hough joint authorship does not require an understanding by the co-authors of the legal consequences of their relationship, obviously some distinguishing characteristic of the relationship must be understood for it to be the subject of their intent.”
Finally, the Childress court emphasized that the requirement of intent is particularly important where “one person … is indisputably the dominant author of the work and the only issue is whether that person is the sole author or she and another … are joint authors.” “Care must be taken … to guard against the risk that a sole author is denied exclusive authorship status simply because another person render[s] some form of assistance.”
Thomson intimates that Childress‘ stringent mutual intent standard is properly limited, by its facts, to cases involving claimants who have made “minimal contribution[s] to the writing of a work.” And she asserts that her purported major contribution of copyrightable expression to Rent, by itself, is evidence of Larson’s intent that she be a co-author. Indeed, Thomson goes further and claims that this proof is enough to give her relationship with Larson the “distinguishing characteristics” needed to establish co-authorship. But Childress makes clear that the contribution even of significant language to a work does not automatically suffice to confer co-author status on the contributor. Under Childress, a specific finding of mutual intent remains necessary. We therefore turn to an examination of the factual indicia of ownership and authorship relevant to this inquiry, as they are defined in prior cases.
b. Evidence of Larson’s Intent
i. Decisionmaking Authority
An important indicator of authorship is a contributor’s decisionmaking authority over what changes are made and what is included in a work.
The district court determined that Larson “retained and intended to retain at all times sole decision-making authority as to what went into [Rent ].” In support of its conclusion, the court relied upon Thomson’s statement that she was “flattered that [Larson] was asking [her] to contribute actual language to the text” and found that this statement demonstrated that even Thomson understood “that the question whether any contribution she might make would go into the script was within Mr. Larson’s sole and complete discretion.” Moreover, as the court recognized, the November agreement between Larson and the NYTW expressly stated that Larson had final approval over all changes to Rent and that all such changes would become Larson’s property.
ii. Billing
In discerning how parties viewed themselves in relation to a work, Childress also deemed the way in which the parties bill or credit themselves to be significant. As the district court noted, “billing or credit is … a window on the mind of the party who is responsible for giving the billing or the credit.” And a writer’s attribution of the work to herself alone is persuasive proof that she intended this particular piece to represent her own individual authorship and is prima facie proof that the work was not intended to be joint.
Thomson claims that Larson’s decision to credit her as “dramaturg” on the final page of Rent scripts reflected some co-authorship intent. Thomson concedes that she never sought equal billing with Larson, but argues that she did not need to do so in order to be deemed a statutory co-author.
The district court found, instead, that the billing was unequivocal: Every script brought to [the court’s] attention says “Rent, by Jonathan Larson.” In addition, Larson “described himself in the biography he submitted for the playbill in January 1996, nine days before he died, as the author/composer, and listed Ms. Thomson on the same document as dramaturg.” And while, as Ms. Thomson argues, it may indeed have been highly unusual for an author/composer to credit his dramaturg with a byline, we fail to see how Larson’s decision to style her as “dramaturg” on the final page in Rent scripts reflects a co-authorship intent on the part of Larson. The district court properly concluded that “the manner in which [Larson] listed credits on the scripts strongly supports the view that he regarded himself as the sole author.”
iii. Written Agreements with Third Parties
Just as the parties’ written agreements with each other can constitute evidence of whether the parties considered themselves to be co-authors, so the parties’ agreements with outsiders also can provide insight into co-authorship intent, albeit to a somewhat more attenuated degree.
The district court found that Larson “listed himself or treated himself as the author in the November 1995 revisions contract that he entered into with the NYTW, which in turn incorporated the earlier draft author’s agreement that had not been signed.” That agreement identifies Larson as Rent’s “Author” and does not mention Thomson. It also incorporates the terms of a September 1995 draft agreement (termed “Author’s Agreement”) that states that Larson “shall receive billing as sole author.” The district court commented, moreover, that “[t]he fact that [Larson] felt free to enter into the November 1995 contract on his own, without the consent of and without any reference to Ms. Thomson quite apart from whatever the terms of the agreements are, indicates that his intention was to be the sole author.”
iv. Additional Evidence
Beside relying on evidence that Larson retained decisionmaking authority over the final work, that he was billed as sole author, and that he entered into written agreements with third parties as sole author, the district court found much other evidence that indicated a lack of intent on Larson’s part to make Thomson a co-author.
Thus, at various times during the development of Rent (once shortly before Thomson was hired as dramaturg in the summer of 1995), Artistic Director Nicola suggested to Larson that he work with a bookwriter to assist him in the refinement of the script. Larson, however, “absolutely, vehemently and totally” rejected the idea of a bookwriter and was steadfast in his determination to make Rent “entirely his own project.” The district court found that Larson’s “rejection of a book writer … speaks to Mr. Larson’s intent[ ] … [and] is part of a broader pattern that persuades me that Mr. Larson never intended the joint authorship relationship.”
Moreover, the evidence before the district court established that Larson not only understood the concept of co-authorship, but that he had used the term “co-author” on two separate copyright applications for different versions of a screenplay he wrote in 1991 and 1992. Larson had also used the term “co- author” in the November 1993 written agreement with Billy Aronson, which provided that Aronson would “not … be considered an active collaborator or co-author of RENT.” On the basis of this evidence, the district court found that, while Larson “understood that the phrase ‘co-author’ was one freighted with legal significance[ ] … there is absolutely no evidence whatever … that [Larson] ever regarded himself as a co-author with Ms. Thomson of Rent.”
Finally, the court relies on “an explicit discussion on the topic of co-authorship” that Thomson claims she and Larson had. According to Thomson’s written trial testimony, the conversation was as follows:
I told him I was flattered that he was asking me to contribute actual language to the text. He responded by saying “Of course I want you to do that!” … He then told me the following: “I’ll always acknowledge your contribution,” and “I would never say that I wrote what you did.”
The district court found that the alleged conversation was “entirely consistent with Mr. Larson’s view that he was the sole author and that Ms. Thomson … was the dramaturg, which he conceived to be a different role.”
c. Conclusion
Based on all of the evidence, the district court concluded that “Mr. Larson never regarded himself as a joint author with Ms. Thomson.” We believe that the district court correctly applied the Childress standards to the evidence before it and hold that its finding that Larson never intended co-authorship was not clearly erroneous.
II. THOMSON’S ALLEGED COPYRIGHT INTERESTS
Thomson argues that, if she is not deemed to be a joint author of Rent, then “she must have all of the rights of a sole author with respect to her own contribution.” On appeal, she asserts for the first time that the only alternative to finding co-authorship is to split a co-created work into its components—i.e., she must be entitled to withdraw her purported contributions. The National Writers Union, a trade union of freelance writers, and Literary Managers and Dramaturgs of the Americas, Inc., a professional association, as amici curiae in support of Thomson, further suggest that Thomson has grounds to file an infringement suit relating to the same material on which her co-authorship claim is premised. Brief for Amici Curiae The National Writers Union and Literary Managers and Dramaturgs of the Americas, Inc. at 13 n.1.
Our circuit has not decided whether a person who makes a non-de minimis copyrightable contribution but cannot meet the mutual intent requirement of co-authorship, retains, in the absence of a work-for-hire agreement or of any explicit contractual assignment of the copyright, any rights and interests in his or her own contribution. This issue, however, was not presented to the district court by the parties. The only ground for relief asserted by Thomson was her purported co-authorship of Rent. Thomson’s assertion that, if she is not deemed a co-author, she has exclusive rights with respect to the material that she contributed to Rent, is raised for the first time on appeal. Because these issues were not raised below and therefore are not properly before us, we express no opinion on them.
CONCLUSION
The district court found that Jonathan Larson lacked the requisite intent to accept Lynn Thomson as a co-author of Rent. We hold that the district court properly applied the Childress v. Taylor test of co-authorship and that its factual finding with respect to Larson’s intent is not clearly erroneous. We therefore affirm the judgment of the district court.
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Check Your Understanding – Thomson
Question 1. Why did the court conclude that Thomson was not a co-author of Rent?
Question 2. According to the Thomson court, what motivated the Second Circuit to set forth the two-pronged Childress test for co-authorship?
Question 3. What would have been the consequence if the court concluded that Thomson was a co-author of Rent?
In Thomson, the court expresses no opinion on the plaintiff’s allegation that she had copyright in her contributions to the play. In the following decision, the same court (Second Circuit) takes up the issue.
Some things to consider when reading 16 Casa Duse:
- The question before the court is whether a contributor to a creative work whose contributions are inseparable from and integrated into the work maintain a copyright interest in his or her contributions alone.
- The chain of events leading up to the lawsuit. Are there any lessons to be learned?
- The plaintiff’s request for an award of attorney’s fees, a remedy available under § 505 of the Copyright Act. (Section 505 is addressed in more detail later in the book.)
- On what basis was the court able to easily conclude that Merkin was not a co-author, and that this was not a “work made for hire”? (Works made for hire are addressed in more detail later in the book.)
- What if Merkin had been able to successfully argue that he was a co-author of the film? Would that have helped him in achieving his apparent objectives?
- On what basis does the Second Circuit come to the same conclusion as the en banc Ninth Circuit did in Garcia, i.e., a director’s contribution to an integrated “work of authorship” such as a film is not itself a “work of authorship” subject to its own copyright protection?
- On what basis does the court reject Merkin’s assertion that he has copyright in the “raw film footage”? If Merkin had prevailed on this issue, what would have been the consequence for 16 Casa Duce?
16 Casa Duse, LLC v. Merkin
791 F.3d 247 (2d Cir. 2015)
SACK, Circuit Judge:
This is an appeal from a judgment of the United States District Court for the Southern District of New York granting summary judgment to the plaintiff on its copyright and state-law claims, dismissing the defendant’s copyright counterclaims, and awarding the plaintiff costs and attorney’s fees. Because we agree with the district court that the plaintiff owns the copyright to all versions of the work in question, a film entitled Heads Up, and that copyright does not subsist in individual contributions to that film, we conclude that the district court properly granted summary judgment to the plaintiff on its copyright claims and did not abuse its discretion in enjoining the defendant from interfering with the plaintiff’s use of the film.
BACKGROUND
Appellee 16 Casa Duse, LLC, (“Casa Duse”) is a film-production company based in Brooklyn, New York. The company is owned and operated by Robert Krakovski. Appellant Alex Merkin is a film director, producer, and editor.
In September 2010, Krakovski, acting at all relevant times as the principal of Casa Duse, purchased the rights to a screenplay entitled Heads Up from the work’s author, Ben Carlin. Krakovski, who planned to finance and produce a short film based on the screenplay, asked Merkin whether he would be willing to direct the film. Merkin agreed, and the two settled informally on a fee of $1,500 for Merkin’s services.
In the ensuing months, Krakovski assembled a cast and crew for the film, also entitled Heads Up.
In February 2011, Krakovski sent Merkin a draft work-for-hire agreement entitled “Director Employment Agreement.” It provided, inter alia, that Casa Duse would own all rights in the film. Merkin acknowledged his receipt of the draft by e-mail, noting that he would ask his lawyer to review it. [Merkin never signed it.]
Despite the lack of a completed agreement, production began later that month. During production, which included three days of filming, Merkin performed his role as director by advising and instructing the film’s cast and crew on matters ranging from camera angles and lighting to wardrobe and makeup to the actors’ dialogue and movement.
In June 2011, Krakovski gave Merkin a hard drive containing the raw film footage in the hope that Merkin would be able to edit the footage.
In November 2011, Merkin sent Krakovski a letter “putting [Krakovski] on notice that [Merkin] forb[ade] any use whatsoever of the raw footage.” The letter conceded that Krakovski owned the screenplay but insisted that Merkin owned the “raw footage.” Merkin threatened to contact film festivals to inform them that Casa Duse lacked rights to the film in the event Krakovski did not assent.
In March 2012, Krakovski began submitting Heads Up to film festivals and making plans to publicize the film. To that end, he scheduled an invitation-only screening for approximately seventy persons at the New York Film Academy (“NYFA”) on April 18, 2012. Krakovski also organized a reception to follow at a nearby restaurant, City Crab, for which he paid a non-refundable deposit of $1,956.58.
On the date of the event, the NYFA chairperson contacted Krakovski to tell him that Merkin’s attorney had threatened the NYFA with a cease-and-desist order to prevent the screening from proceeding. NYFA cancelled the screening in response to these threats, and Casa Duse lost its restaurant deposit. Casa Duse subsequently missed at least four film festival submission deadlines as a result of the dispute. Merkin did not return the hard drive, the DVDs, or the raw footage in any form.
DISCUSSION
This case requires us to answer a question of first impression in this Circuit: May a contributor to a creative work whose contributions are inseparable from, and integrated into, the work maintain a copyright interest in his or her contributions alone? We conclude that, at least on the facts of the present case, he or she may not.
III. Copyright Claims
Merkin argues that the district court erred in concluding, first, that Merkin could not copyright his creative contributions to the film, and, second, that he lacks copyright ownership of the “raw film footage.” Casa Duse responds that individual contributions to a film, such as direction, are not themselves subject to copyright protection and that Casa Duse retains sole copyright ownership of the film and the “raw footage,” to the extent the two are distinguishable for copyright purposes.
Two points merit mention at the outset.
First, the parties agree that Merkin is not a “joint author” or “co-author” of the film under the 1976 Copyright Act. If he were, that fact would likely prohibit his interference with Casa Duse’s use and display of the film, because “[o]ne joint owner cannot be liable for copyright infringement to another joint owner.” 1 Melville B. Nimmer & David Nimmer, Nimmer on Copyright § 6.10[A] (2015). A co-authorship claimant in our Circuit generally must show that “each of the putative co-authors (1) made independently copyrightable contributions to the work; and (2) fully intended to be co-authors. Even assuming the first prong is met here, we agree with the district court that “the record uniformly establishes that [Casa Duse], through its principal, Krakovski, never intended to share authorship of the film with Merkin or anyone else,” and “[t]here is also considerable evidence that Merkin never intended to be [Casa Duse’s] co-author.”
Second, the parties also agree that Merkin’s efforts cannot be deemed a “work made for hire.” A work-for-hire arrangement requires:
(1) a work prepared by an employee within the scope of his or her employment; or (2) a work specially ordered or commissioned for use as a contribution to a collective work, as a part of a motion picture[, or for other specified purposes] … if the parties expressly agree in a written instrument signed by them that the work shall be considered a work made for hire.
Merkin was not Casa Duse’s employee, and the parties failed to execute a written agreement.
A. Copyright in Creative Contributions to a Work
We have never decided whether an individual’s non-de minimis creative contributions to a work in which copyright protection subsists, such as a film, fall within the subject matter of copyright, when the contributions are inseparable from the work and the individual is neither the sole nor a joint author of the work and is not a party to a work-for-hire arrangement. See Thomson, 47 F.3d at 206 (acknowledging open question and resolving case on alternative grounds). We answer that question in the negative on the facts of the present case, finding that the Copyright Act’s terms, structure, and history support the conclusion that Merkin’s contributions to the film do not themselves constitute a “work of authorship” amenable to copyright protection.
The Copyright Act does not define the term “works of authorship.” Section 102 of the Act, however, lists examples of categories of “works of authorship,” including “literary works,” 17 U.S.C. § 102(a)(1), “musical works,” id. § 102(a)(2), and—most relevant here—“motion pictures and other audiovisual works,” id. § 102(a)(6). This list is not exhaustive, but as we have previously observed, categories of creative efforts that are not “similar [or] analogous to any of the listed categories” are unlikely to fall within the subject matter of federal copyright protection. Nat’l Basketball Ass’n v. Motorola, Inc., 105 F.3d 841, 846 (2d Cir.1997) (concluding that “basketball games do not fall within the subject matter of federal copyright protection because they do not constitute ‘original works of authorship’ under 17 U.S.C. § 102(a).”). Motion pictures, like “pantomimes,” 17 U.S.C. § 102(a)(4), and “dramatic works,” id. § 102(a)(3), are works that may be expected to contain contributions from multiple individuals. See Richlin v. Metro–Goldwyn–Mayer Pictures, Inc., 531 F.3d 962, 975 (9th Cir.2008) (“A motion picture is a work to which many contribute; however, those contributions ultimately merge to create a unitary whole.”). But the Act lists none of the constituent parts of any of these kinds of works as “works of authorship.” This uniform absence of explicit protection suggests that non-freestanding contributions to works of authorship are not ordinarily themselves works of authorship.
Other provisions of the Act support this conclusion. The Act’s definition of “joint work,” a work prepared by multiple authors “with the intention that their contributions be merged into inseparable or interdependent parts of a unitary whole,” 17 U.S.C. § 101 (emphasis added), suggests that such inseparable contributions are not themselves “works of authorship.” Copyright may subsist in contributions to a collective work, see id. § 201(c) ( “Copyright in each separate contribution to a collective work is distinct from copyright in the collective work as a whole.”), but only when such contributions constitute “separate and independent” works. Id. § 101 (“A ‘collective work’ is a work, such as a periodical issue, anthology, or encyclopedia, in which a number of contributions, constituting separate and independent works in themselves, are assembled into a collective whole.” (emphasis added)). The requirement that contributions be “separate and independent” in order to obtain their own copyright protection also indicates that inseparable contributions integrated into a single work cannot separately obtain such protection.
The legislative history of the Copyright Act further supports this reading. According to the House Report on the 1976 Act:
[A] motion picture would normally be a joint rather than a collective work with respect to those authors who actually work on the film, although their usual status as employees for hire would keep the question of coownership from coming up. On the other hand, although a novelist, playwright, or songwriter may write a work with the hope or expectation that it will be used in a motion picture, this is clearly a case of separate or independent authorship rather than one where the basic intention behind the writing of the work was for motion picture use.
While issues of “coownership” of a copyright may arise in the motion picture context, the question of separate contributions meriting separate copyrights as “works” ordinarily would not, unless the motion picture incorporates separate, freestanding pieces that independently constitute “works of authorship.” In a joint work, “the separate elements [comprising the work] merge into a unified whole,” whereas in a collective work, individuals’ contributions “remain unintegrated and disparate.”
There was, until recently, some authority apparently to the contrary. The majority of a three-judge panel of the Ninth Circuit concluded that copyright protection may subsist in an actor’s performance in a motion picture. See Garcia v. Google, Inc., 766 F.3d 929, 933–36 (9th Cir.), rev’d en banc, 786 F.3d 733 (9th Cir.2015) (“Garcia (en banc )”). In Garcia, as in the present case, an individual who made a contribution to a finished film—in that case, an actor—claimed ownership of a copyright interest in her contribution. The court reasoned that the actor’s performance exhibited at least a “minimal degree of creativity” such that the actor had probably engaged in an original act of authorship. And the performance was, in the court’s view, “fixed” in a tangible medium as part of the finished film.
An en banc panel reversed, concluding that the actor’s “theory of copyright law would result in [a] legal morass[,] … [making] Swiss cheese of copyrights.” We agree. Filmmaking is a collaborative process typically involving artistic contributions from large numbers of people, including—in addition to producers, directors, and screenwriters—actors, designers, cinematographers, camera operators, and a host of skilled technical contributors. If copyright subsisted separately in each of their contributions to the completed film, the copyright in the film itself, which is recognized by statute as a work of authorship, could be undermined by any number of individual claims. These various contributors may make original artistic expressions, which are arguably fixed in the medium of film footage. But while originality and fixation are necessary prerequisites to obtaining copyright protection, they are not alone sufficient: Authors are not entitled to copyright protection except for the “works of authorship” they create and fix.
Our conclusion in the present case does not suggest that motion picture directors such as Merkin may never achieve copyright protection for their creative efforts. The director of a film may, of course, be the sole or joint author of that film, such that she or he can secure copyright protection for the work. See Cmty. for Creative Non–Violence, 490 U.S. at 737 (“As a general rule, the author is the party who actually creates the work, that is, the person who translates an idea into a fixed, tangible expression entitled to copyright protection.”); see also F. Jay Dougherty, Not A Spike Lee Joint? Issues in the Authorship of Motion Pictures Under U.S. Copyright Law, 49 UCLA L.Rev. 225, 312 (2001) (“[T]he director of the film is certainly potentially one of its most important authors.”). And authors of freestanding works that are incorporated into a film, such as dance performances or songs, may copyright these “separate and independent work [s].” 17 U.S.C. § 101 (defining “collective work”). But a director’s contribution to an integrated “work of authorship” such as a film is not itself a “work of authorship” subject to its own copyright protection.
A final observation: A conclusion other than the one we adopt would grant contributors like Merkin greater rights than joint authors, who, as we have noted, have no right to interfere with a co-author’s use of the copyrighted work. See Childress, 945 F.2d at 508(“Joint authorship entitles the co-authors to equal undivided interests in the work.”). We doubt that Congress intended for contributors who are not joint authors to have greater rights enabling them to hamstring authors’ use of copyrighted works, as apparently occurred in the case at bar. We agree with the en banc Ninth Circuit, then, that the creation of “thousands of standalone copyrights” in a given work was likely not intended. Garcia (en banc ).
We conclude that Merkin did not obtain and does not possess a copyright in his directorial contributions to the finished film.
B. Copyright in Raw Film Footage
Merkin also contends that he and not Casa Duse owns all copyright interests in the “raw film footage” which was contained on the hard drive and DVDs and from which the final film Heads Up was or will be produced.
Unlike Merkin’s creative contributions to the film, the film footage is subject to copyright protection. An original motion picture is surely a “work of authorship” in which copyright protection “subsists” under the Copyright Act. See 17 U.S.C. § 102(a)(6). And “where a work is prepared over a period of time, the portion of it that has been fixed at any particular time constitutes the work as of that time.” The unedited film footage at issue in this case seems to us to be an early version of the finished product, constituting the film “as of that time.” Because the Copyright Act affords protection to each work at the moment of its creation,” copyright subsists even in such an unfinished work.
With respect to the ownership of any such copyright, “[c]opyright in a work protected under this title vests initially in the author or authors of the work.” 17 U.S.C. § 201(a). The Copyright Act contemplates instances in which multiple authors of a single work may maintain some form of copyright ownership in that work, but the parties agree that Heads Up fits into none of those categories. In cases in which none of the multiple-author scenarios specifically identified by the Copyright Act applies, but multiple individuals lay claim to the copyright in a single work, the dispositive inquiry is which of the putative authors is the “dominant author.”
The district court concluded, and we agree, that Casa Duse was that “dominant author.” Our Circuit has not proffered rules for determining which of multiple authors is “dominant.” We have, however, identified “factual indicia of ownership and authorship” relevant to the joint-author inquiry. These factors—including decisionmaking authority, billing, and written agreements with third parties—are also relevant to our dominant-author inquiry.
As to decisionmaking authority, which refers to the parties’ relative control “over what changes are made and what is included in a work,” the parties agree that Merkin exercised a significant degree of control over many of the creative decisions underlying both the raw film footage and the finished product. As director, Merkin made a variety of creative decisions related to camera work, lighting, blocking, and actors’ wardrobe, makeup, and dialogue delivery, particularly during the three days of filming. But in the context of the project as a whole, Casa Duse exercised far more decisionmaking authority. Casa Duse initiated the project; acquired the rights to the screenplay; selected the cast, crew and director; controlled the production schedule; and coordinated (or attempted to coordinate) the film’s publicity and release.
The second factor is “the way in which the parties bill or credit themselves,” which provides evidence of intent of authorship. Although Merkin evidently sought to retain the right to remove his name from the finished film, both parties initially intended to take some credit for the final product. The billing inquiry as to the raw footage, then, appears to us to be essentially neutral, as we understand will often be the case in the context of a motion picture.
The third factor, “the parties’ agreements with outsiders,” Thomson, points decisively in Casa Duse’s favor. Casa Duse obtained written work-for-hire agreements from every cast and crew member other than Merkin. Merkin did not, so far as the record shows, enter into any third party agreements. Indeed, nothing in the record suggests he had any intention to do so. Casa Duse also entered into an agreement with the screenwriter, authorizing the very creation of the film as a derivative work. Thus Casa Duse executed all of the relevant third-party agreements.
We agree with the district court that in this case, Casa Duse was the dominant author of the film. The record does not reflect any developments that occurred between the creation of the raw film footage and Casa Duse’s attempts to create a finished product that would alter this analysis as to the raw footage. We thus conclude that Casa Duse, not Merkin, owns the copyright in the finished film and its prior versions, including the disputed “raw film footage.”
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Check Your Understanding – 16 Casa Duse
Question 1. Why did the court conclude that Merkin’s contributions to the film were not copyrightable?
Question 2. According to the court, why would it be bad policy for the law to allow anyone who made an artistic contribution to a film to obtain copyright protection on their contribution?
C. Works Made for Hire
Section 101 of the 1976 Act provides that a copyrighted work is a “work made for hire” under two sets of circumstances:
(1) a work prepared by an employee within the scope of his or her employment; or
(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.
Section 201(b) states that “[i]n the case of a work made for hire, the employer or other person for whom the work was prepared is considered the author for purposes of this title, and, unless the parties have expressly agreed otherwise in a written instrument signed by them, owns all of the rights comprised in the copyright.”
As a consequence, the ownership of copyright in a “work made for hire” vests initially with the employer, not with the creator(s). This result has a number of practical consequences. For example, the duration of the copyright differs depending on whether or not it is a work made for hire. Probably of more significance is the fact that although an author (or in some cases the author’s heir) has the right to terminate any transfer of the copyright after 35 years, this right of termination does not apply to works made for hire. Copyright duration and the termination right are discussed later in this book.
In determining whether or not a work was “prepared by an employee within the scope of his or her employment,” and thus a work made for hire, it is not always easy to ascertain whether or not the individual who prepared the work was an “employee.” In the following decision, the Supreme Court addresses the issue and establishes the test courts are to use in determining whether an individual is an “employee,” as opposed to, for example, an independent contractor.
Some things to consider when reading CCNV:
- The Court’s discussion of the definition of a “work made for hire.”
- The test that the Court arrives at for whether an author is an “employee” for purposes of determining whether a work is “made for hire.”
- The Court’s application of the test to the facts of this case.
- The Court’s discussion of policy.
- Ultimately, this is a case of statutory interpretation. In particular, the Court must ascertain the meaning of the word “employee” as it appears in the Copyright Act’s definition of a “work made for hire.” Pay attention to the various tenets of statutory interpretation the Court applies in arriving at its conclusion.
Cmty. for Creative Non-Violence v. Reid
490 U.S. 730 (1989)
MARSHALL, Justice.
In this case, an artist and the organization that hired him to produce a sculpture contest the ownership of the copyright in that work. To resolve this dispute, we must construe the “work made for hire” provisions of the Copyright Act of 1976 (Act or 1976 Act), 17 U.S.C. §§ 101 and 201(b), and in particular, the provision in § 101, which defines as a “work made for hire” a “work prepared by an employee within the scope of his or her employment” (hereinafter § 101(1)).
I
Petitioners are the Community for Creative Non–Violence (CCNV), a nonprofit unincorporated association dedicated to eliminating homelessness in America, and Mitch Snyder, a member and trustee of CCNV. In the fall of 1985, CCNV decided to participate in the annual Christmastime Pageant of Peace in Washington, D.C., by sponsoring a display to dramatize the plight of the homeless. As the District Court recounted:
“Snyder and fellow CCNV members conceived the idea for the nature of the display: a sculpture of a modern Nativity scene in which, in lieu of the traditional Holy Family, the two adult figures and the infant would appear as contemporary homeless people huddled on a streetside steam grate. The family was to be black (most of the homeless in Washington being black); the figures were to be life-sized, and the steam grate would be positioned atop a platform ‘pedestal,’ or base, within which special-effects equipment would be enclosed to emit simulated ‘steam’ through the grid to swirl about the figures. They also settled upon a title for the work—‘Third World America’—and a legend for the pedestal: ‘and still there is no room at the inn.’”
Snyder made inquiries to locate an artist to produce the sculpture. He was referred to respondent James Earl Reid, a Baltimore, Maryland, sculptor. In the course of two telephone calls, Reid agreed to sculpt the three human figures. CCNV agreed to make the steam grate and pedestal for the statue. Reid proposed that the work be cast in bronze, at a total cost of approximately $100,000 and taking six to eight months to complete. Snyder rejected that proposal because CCNV did not have sufficient funds, and because the statue had to be completed by December 12 to be included in the pageant. Reid then suggested, and Snyder agreed, that the sculpture would be made of a material known as “Design Cast 62,” a synthetic substance that could meet CCNV’s monetary and time constraints, could be tinted to resemble bronze, and could withstand the elements. The parties agreed that the project would cost no more than $15,000, not including Reid’s services, which he offered to donate. The parties did not sign a written agreement. Neither party mentioned copyright.
After Reid received an advance of $3,000, he made several sketches of figures in various poses. At Snyder’s request, Reid sent CCNV a sketch of a proposed sculpture showing the family in a crèche like setting: the mother seated, cradling a baby in her lap; the father standing behind her, bending over her shoulder to touch the baby’s foot. Reid testified that Snyder asked for the sketch to use in raising funds for the sculpture. Snyder testified that it was also for his approval. Reid sought a black family to serve as a model for the sculpture. Upon Snyder’s suggestion, Reid visited a family living at CCNV’s Washington shelter but decided that only their newly born child was a suitable model. While Reid was in Washington, Snyder took him to see homeless people living on the streets. Snyder pointed out that they tended to recline on steam grates, rather than sit or stand, in order to warm their bodies. From that time on, Reid’s sketches contained only reclining figures.
Throughout November and the first two weeks of December 1985, Reid worked exclusively on the statue, assisted at various times by a dozen different people who were paid with funds provided in installments by CCNV. On a number of occasions, CCNV members visited Reid to check on his progress and to coordinate CCNV’s construction of the base. CCNV rejected Reid’s proposal to use suitcases or shopping bags to hold the family’s personal belongings, insisting instead on a shopping cart. Reid and CCNV members did not discuss copyright ownership on any of these visits.
On December 24, 1985, 12 days after the agreed-upon date, Reid delivered the completed statue to Washington. There it was joined to the steam grate and pedestal prepared by CCNV and placed on display near the site of the pageant. Snyder paid Reid the final installment of the $15,000. The statue remained on display for a month. In late January 1986, CCNV members returned it to Reid’s studio in Baltimore for minor repairs. Several weeks later, Snyder began making plans to take the statue on a tour of several cities to raise money for the homeless. Reid objected, contending that the Design Cast 62 material was not strong enough to withstand the ambitious itinerary. He urged CCNV to cast the statue in bronze at a cost of $35,000, or to create a master mold at a cost of $5,000. Snyder declined to spend more of CCNV’s money on the project.
In March 1986, Snyder asked Reid to return the sculpture. Reid refused. He then filed a certificate of copyright registration for “Third World America” in his name and announced plans to take the sculpture on a more modest tour than the one CCNV had proposed. Snyder, acting in his capacity as CCNV’s trustee, immediately filed a competing certificate of copyright registration.
Snyder and CCNV then commenced this action against Reid and his photographer, Ronald Purtee, seeking return of the sculpture and a determination of copyright ownership. The District Court granted a preliminary injunction, ordering the sculpture’s return. After a 2–day bench trial, the District Court declared that “Third World America” was a “work made for hire” under § 101 of the Copyright Act and that Snyder, as trustee for CCNV, was the exclusive owner of the copyright in the sculpture. The 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 and remanded, holding that Reid owned the copyright because “Third World America” was not a work for hire. Adopting what it termed the “literal interpretation” of the Act, the court read § 101 as creating “a simple dichotomy in fact between employees and independent contractors.” Because, under agency law, Reid was an independent contractor, the court concluded that the work was not “prepared by an employee” under § 101(1). Nor was the sculpture a “work made for hire” under the second subsection of § 101 (hereinafter § 101(2)): sculpture is not one of the nine categories of works enumerated in that subsection, and the parties had not agreed in writing that the sculpture would be a work for hire. The court suggested that the sculpture nevertheless may have been jointly authored by CCNV and Reid, and remanded for a determination whether the sculpture is indeed a joint work under the Act.
We granted certiorari to resolve a conflict among the Courts of Appeals over the proper construction of the “work made for hire” provisions of the Act. We now affirm.
II
A
The Copyright Act of 1976 provides that copyright ownership “vests initially in the author or authors of the work.” 17 U.S.C. § 201(a). As a general rule, the author is the party who actually creates the work, that is, the person who translates an idea into a fixed, tangible expression entitled to copyright protection. § 102. The Act carves out an important exception, however, for “works made for hire.” If the work is for hire, “the employer or other person for whom the work was prepared is considered the author” and owns the copyright, unless there is a written agreement to the contrary. § 201(b). Classifying a work as “made for hire” determines not only the initial ownership of its copyright, but also the copyright’s duration, § 302(c), and the owners’ renewal rights, § 304(a), termination rights, § 203(a), and right to import certain goods bearing the copyright, § 601(b)(1). See 1 M. Nimmer & D. Nimmer, Nimmer on Copyright § 5.03[A], pp. 5–10 (1988). The contours of the work for hire doctrine therefore carry profound significance for freelance creators—including artists, writers, photographers, designers, composers, and computer programmers—and for the publishing, advertising, music, and other industries which commission their works.
Section 101 of the 1976 Act provides that a work is “for hire” under two sets of circumstances:
“(1) a work prepared by an employee within the scope of his or her employment; or
(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.”
Petitioners do not claim that the statue satisfies the terms of § 101(2). Quite clearly, it does not. Sculpture does not fit within any of the nine categories of “specially ordered or commissioned” works enumerated in that subsection, and no written agreement between the parties establishes “Third World America” as a work for hire.
The dispositive inquiry in this case therefore is whether “Third World America” is “a work prepared by an employee within the scope of his or her employment” under § 101(1). The Act does not define these terms. In the absence of such guidance, four interpretations have emerged. The first holds that a work is prepared by an employee whenever the hiring party retains the right to control the product. A second, and closely related, view is that a work is prepared by an employee under § 101(1) when the hiring party has actually wielded control with respect to the creation of a particular work. This approach was formulated by the Court of Appeals for the Second Circuit, and adopted by the Fourth Circuit, and, at times, by petitioners. A third view is that the term “employee” within § 101(1) carries its common-law agency law meaning. This view was endorsed by the Fifth Circuit and by the Court of Appeals below. Finally, respondent and numerous amici curiae contend that the term “employee” only refers to “formal, salaried” employees. The Court of Appeals for the Ninth Circuit recently adopted this view.
The starting point for our interpretation of a statute is always its language. The Act nowhere defines the terms “employee” or “scope of employment.” It is, however, well established that where Congress uses terms that have accumulated settled meaning under the common law, a court must infer, unless the statute otherwise dictates, that Congress means to incorporate the established meaning of these terms. In the past, when Congress has used the term “employee” without defining it, we have concluded that Congress intended to describe the conventional master-servant relationship as understood by common-law agency doctrine. Nothing in the text of the work for hire provisions indicates that Congress used the words “employee” and “employment” to describe anything other than “the conventional relation of employer and employee.” On the contrary, Congress’ intent to incorporate the agency law definition is suggested by § 101(1)’s use of the term, “scope of employment,” a widely used term of art in agency law. See Restatement (Second) of Agency § 228 (1958) (hereinafter Restatement).
In past cases of statutory interpretation, when we have concluded that Congress intended terms such as “employee,” “employer,” and “scope of employment” to be understood in light of agency law, we have relied on the general common law of agency, rather than on the law of any particular State, to give meaning to these terms. This practice reflects the fact that federal statutes are generally intended to have uniform nationwide application. Establishment of a federal rule of agency, rather than reliance on state agency law, is particularly appropriate here given the Act’s express objective of creating national, uniform copyright law by broadly pre-empting state statutory and common-law copyright regulation. See 17 U.S.C. § 301(a). We thus agree with the Court of Appeals that the term “employee” should be understood in light of the general common law of agency.
In contrast, neither test proposed by petitioners is consistent with the text of the Act. The exclusive focus of the right to control the product test on the relationship between the hiring party and the product clashes with the language of § 101(1), which focuses on the relationship between the hired and hiring parties. The right to control the product test also would distort the meaning of the ensuing subsection, § 101(2). Section 101 plainly creates two distinct ways in which a work can be deemed for hire: one for works prepared by employees, the other for those specially ordered or commissioned works which fall within one of the nine enumerated categories and are the subject of a written agreement. The right to control the product test ignores this dichotomy by transforming into a work for hire under § 101(1) any “specially ordered or commissioned” work that is subject to the supervision and control of the hiring party. Because a party who hires a “specially ordered or commissioned” work by definition has a right to specify the characteristics of the product desired, at the time the commission is accepted, and frequently until it is completed, the right to control the product test would mean that many works that could satisfy § 101(2) would already have been deemed works for hire under § 101(1). Petitioners’ interpretation is particularly hard to square with § 101(2)’s enumeration of the nine specific categories of specially ordered or commissioned works eligible to be works for hire, e.g., “a contribution to a collective work,” “a part of a motion picture,” and “answer material for a test.” The unifying feature of these works is that they are usually prepared at the instance, direction, and risk of a publisher or producer. By their very nature, therefore, these types of works would be works by an employee under petitioners’ right to control the product test.
The actual control test, articulated by the Second Circuit in Aldon Accessories, fares only marginally better when measured against the language and structure of § 101. Under this test, independent contractors who are so controlled and supervised in the creation of a particular work are deemed “employees” under § 101(1). There is no statutory support for a dichotomy between commissioned works that are actually controlled and supervised by the hiring party and those that are not.
We therefore conclude that the language and structure of § 101 of the Act do not support either the right to control the product or the actual control approaches.4
Petitioners’ construction of the work for hire provisions would impede Congress’ paramount goal in revising the 1976 Act of enhancing predictability and certainty of copyright ownership. In a “copyright marketplace,” the parties negotiate with an expectation that one of them will own the copyright in the completed work. With that expectation, the parties at the outset can settle on relevant contractual terms, such as the price for the work and the ownership of reproduction rights.
To the extent that petitioners endorse an actual control test, CCNV’s construction of the work for hire provisions prevents such planning. Because that test turns on whether the hiring party has closely monitored the production process, the parties would not know until late in the process, if not until the work is completed, whether a work will ultimately fall within § 101(1). 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. This understanding of the work for hire provisions clearly thwarts Congress’ goal of ensuring predictability through advance planning.
In sum, we must reject petitioners’ argument. Transforming a commissioned work into a work by an employee on the basis of the hiring party’s right to control, or actual control of, the work is inconsistent with the language, structure, and legislative history of the work for hire provisions. To determine whether a work is for hire under the Act, a court first should ascertain, using principles of general common law of agency, whether the work was prepared by an employee or an independent contractor. After making this determination, the court can apply the appropriate subsection of § 101.
B
We turn, finally, to an application of § 101 to Reid’s production of “Third World America.” 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.
See Restatement § 220(2) (setting forth a nonexhaustive list of factors relevant to determining whether a hired party is an employee). No one of these factors is determinative.
Examining the circumstances of this case in light of these factors, we agree with the Court of Appeals that 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.
Because Reid was an independent contractor, whether “Third World America” is a work for hire depends on whether it satisfies the terms of § 101(2). This petitioners concede it cannot do. Thus, CCNV is not the author of “Third World America” by virtue of the work for hire provisions of the Act. However, 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.” 17 U.S.C. § 101. In that case, CCNV and Reid would be co-owners of the copyright in the work. See § 201(a).
For the aforestated reasons, we affirm the judgment of the Court of Appeals for the District of Columbia Circuit.
__________
Check Your Understanding – CCNV
Question 1. Which of the following constitutes a “work made for hire”?
Question 2. For purposes of the “work for hire” doctrine, under what circumstances is a hired party treated as an employee?
Question 3. Why did the Court use the Restatement (Second) of Agency to arrive at its non-exhaustive list of factors relevant to the question of whether a hired party is an employee?
In the following decision, the Second Circuit applies the Reid factors to determine whether a screenwriter hired to write the movie Friday the 13th was an “employee” of the film production company.
Some things to consider when reading Horror Inc.:
- As discussed in more detail later in this book, the 1976 Act allows authors to terminate transfers of copyright interests 35 years after those transfers were made. 17 U.S.C. § 203. Miller, the screenwriter who wrote Friday the 13th, has invoked his termination right in the screenplay, and the movie production company is attempting to block the termination of rights by establishing that the screenplay is a work made for hire. If it was a work made for hire, copyright vested initially with the employer, i.e., the movie production company, and the screenwriter would have no right to terminate the transfer.
- The Second Circuit applies a somewhat refined version of the Reid test, ultimately concluding that the screenwriter was not an employee of the film production company, and thus this was not a work made for hire.
- Since the screenplay was not a work made for hire, the author Miller will apparently be able to terminate his transfer of copyright to the film production company. What are the practical ramifications of this termination of transfer, given that elements of the original Friday the 13th appear in numerous derivative works, e.g., sequels, videogames, etc.? We will address this question in more detail later in the section of the book particularly focused on termination of transfers.
Horror Inc. v. Miller
15 F.4th 232 (2d Cir. 2021)
Carney, Circuit Judge:
This dispute concerns whether, for Copyright Act purposes, the screenwriter Victor Miller was an employee or independent contractor of the film production company Manny, Inc., in 1979, when Miller wrote the screenplay for the landmark horror film Friday the 13th, released in 1980. Almost forty years later, in 2016, Miller gave notice to Manny purporting to terminate its copyright under the authority vested in authors by section 203 of the Act. See 17 U.S.C. § 203. If Miller was Manny’s employee when he wrote the screenplay, then it is a “work made for hire” under the Act; Manny, not Miller, owns the screenplay; and Miller’s notice is of no effect. Alternatively, if Miller was an independent contractor vis-à-vis Manny when he wrote the screenplay, and if certain other conditions are satisfied, then Miller is entitled to terminate Manny’s and its successors’ rights and, as author, to reclaim his own.
We conclude that Miller was an independent contractor when he wrote the screenplay and is therefore entitled to authorship rights. Accordingly, the notice of termination that he gave under section 203 is effective as to Manny and its successors.
BACKGROUND
I. Factual Background
Victor Miller is a professional writer of novels, screenplays, and teleplays. Sean S. Cunningham is a producer, director, and writer of feature films. His company, Sean S. Cunningham Films Ltd., is the general partner of Manny Company, a Connecticut limited partnership. Cunningham formed Manny as a corporate vehicle for producing and distributing motion pictures.
In 1979, the nationwide success of Halloween, a low-budget horror film, inspired Cunningham to produce his own horror film. Cunningham contacted Miller about the idea. In late spring of 1979, Miller and Cunningham “orally agreed that Miller would write the screenplay for [the] horror film project.” Sometime in June of that year—the document is not dated—Manny and Miller executed an agreement [which] provided that Manny “employ[ed] the Writer”—Miller—“to write a complete and finished screenplay for a proposed motion picture to be budgeted at $under $1 million [sic], and presently entitled or designated Friday 13.” In exchange, Manny promised to “pay [Miller] as full compensation for his services” $9,282 in two lump-sum payments: $5,569 for delivery of the first draft of the screenplay, and $3,713 for delivery of the final draft. It advised, “this Agreement contemplates payment of the entire agreed[-]upon compensation.”
After Cunningham recruited Miller for the project, Miller viewed the recently released Halloween, discussed ideas and locations for the film with Cunningham, and developed the idea for setting the film at a summer camp before the camp seasons opens (Miller suggested the idea; Cunningham agreed). He then wrote a treatment for the horror film, at the time entitled “The Long Night at Camp Blood” (the “Treatment”). Miller next proceeded to write first and second drafts of the related screenplay (the “Screenplay”), and over time revised the second draft, developing the Screenplay in its final form. The revisions included adding references to “Friday the 13th” (the title suggested by Cunningham), and a new ending (one that project investor Phil Scuderi insisted on).
Miller wrote various versions of the Treatment and Screenplay over the course of approximately two months. As with Miller and Cunningham’s past collaborations, the two worked closely together to develop the two documents. Miller described how, during the writing process, the pair “enthusiastically bounced ideas off of one another.” Miller and Cunningham met at each other’s homes to discuss ideas for the Film, and Miller drafted the Treatment and Screenplay at his own home, on his own typewriter, using his own typewriter ribbon and paper. Miller made use of Cunningham’s photocopier and photocopy paper, and Cunningham’s assistant retyped the second draft of the Screenplay to reformat the draft to contain certain margin content.
Miller usually did his writing in the morning because he was a “morning person” and preferred to write between “7 a.m. and noon,” and not because Cunningham would dictate Miller’s specific work hours. Miller was responsible, however, for conforming his completion of screenplay drafts to the demands of the Film’s broader production schedule. Cunningham had no right to assign Miller additional projects beyond the writing of the Screenplay provided in the Contract.
The parties dispute the extent to which Cunningham dictated the contents of the Treatment and Screenplay. Cunningham averred that he “tutor[ed] Miller on key elements of successful horror films,” and “retained final authority over what went into, or stayed out of, the Screenplay. According to Cunningham, sometimes, while “Miller drafted on his typewriter, [Cunningham] stood over [Miller’s] shoulder making suggestions and contributions.” In contrast, although Miller acknowledges that Cunningham provided “notes or suggestions” on the Screenplay drafts, he contends that “Cunningham did not dictate what [Miller] should do or write.” The parties agree, however, that Cunningham made the following general suggestions: that the killings throughout the movie should be “personal” (and that guns are “impersonal” ways to kill in movies); that the killer should always remain masked; and that a major character should be killed early on.
It is undisputed that, although Cunningham and Miller often collaborated on the Treatment and Screenplay, Miller consistently received “sole ‘written by’ credit” as the screenwriter for the Film.
During the same summer, in 1979, Cunningham accepted an offer from investor Phil Scuderi, the principal of Georgetown Productions, Inc. (“Georgetown”), to finance Friday the 13th in exchange for giving Georgetown “complete control over the Screenplay and the Film.” Cunningham recounted that, after agreeing to this arrangement, Scuderi “provided extensive notes, mark-ups and ideas which were incorporated into the final shooting script and Film itself.” Cunningham did not offer any details on Scuderi’s “extensive” changes to the script, except for noting that Scuderi altered the Film’s closing scene as follows: Scuderi proposed that, in the final scene, “the character ‘Jason’—who, in Miller’s Treatment and Screenplay, died as a young boy and never appears in any of Miller’s drafts—emerges from the depths of the lake as a disfigured child, and reaches out of the water to pull one of the main protagonists into the lake.”
As Cunningham recalls it, Miller “was vehemently opposed to the idea of Jason coming back to life at all … because the whole point of [Miller’s] script was that Jason’s mother killed the camp counselors as vengeance for her son’s death.” Cunningham, too, was “not fond” of Scuderi’s proposed change to the final scene. Nevertheless, “[a]t Georgetown’s insistence, [Scuderi’s] scene was written and incorporated into the Film, and gave birth to the character Jason as an immortal adult killer who returned from the dead, and to numerous sequels in the franchise.”
In 1980, Manny assigned its rights in the Film and Screenplay to Georgetown (the “Georgetown Agreement”), and Georgetown duly registered the related copyrights. The registration listed “Georgetown Productions, Inc.” as the Film’s author, and it described the Film as a “work made for hire.” The Copyright Office’s digital version of the Screenplay, however, provides a “written by” credit to Miller. Horror Inc., a third company owned by persons new to the project, later acquired from Georgetown the rights, title, and interest to the Friday the 13th franchise, including rights to the Screenplay and the Film. Horror became the successor-in-interest to Georgetown and Manny regarding these copyrighted properties.
The Film Friday the 13th opened on May 9, 1980. Cunningham described it as “an immediate hit,” that over time “enjoy[ed] unprecedented box office success for a horror film.” It has since spawned eleven sequels, among other derivative products.
Several years after the opening, Miller began to believe that he was not receiving the additional sequel and residual payments on the Film that he was due under the [agreement]. [I]n the late 1980s, Miller received a settlement of $27,396.46. Cunningham estimates that Miller has also received approximately $220,000 from Horror related to “residuals, sequels, and other payments under the employment agreement.”
STANDARDS OF REVIEW
Because a “work made for hire” is a statutory exception to the general rule of author-ownership of copyright, the party claiming the exception bears the burden of proving that the exception applies.
The Copyright Act provides expressly that the facts stated in a copyright registration are entitled to a presumption of validity. 17 U.S.C. § 410(c).
DISCUSSION
I. Was Miller an “employee” of Manny or an “independent contractor” under the Copyright Act?
On appeal, Manny and Horror claim that Miller prepared the Screenplay as an “employee” of Manny. (For convenience, we refer to them as “the Companies,” distinguishing between them only as necessary.) Thus, the Companies contend, the Screenplay was a “work for hire” and Miller cannot exercise his termination rights under section 203(a).
(1) The concept of “work for hire” under the Copyright Act
Section 101 of the Act defines two mutually exclusive categories of work for hire: the first provides that a work made by an employee within the scope of his employment is a work for hire; and the second provides that a specially commissioned work that is subject to an express agreement that the work will be treated as one made for hire is such a work. The Companies concede, as they must, that the Screenplay does not qualify under the “specially commissioned work” definition: although the parties entered into a written agreement, the WGA form contract that they signed does not provide that the Screenplay is a work for hire. They thus did not expressly agree to its treatment as such, and it is not a specially commissioned work. The Companies’ appeal thus centers on whether Miller was “writing within the scope of the employment” as Manny’s “employee” when he composed the Screenplay.
In 1980, Georgetown registered the copyright in the Screenplay, designating it in the Copyright Office form as “a work made for hire.” As explained above, section 410(c) of the Act creates a statutory presumption of validity for facts set forth in a copyright registration document. The Companies are thus entitled to a statutory presumption that the Screenplay was indeed a work for hire. That presumption, however, is rebuttable, and, for the reasons set forth below, we conclude that it was rebutted here.
(2) The Reid framework and factors
In Reid, the Supreme Court created an enduring framework for distinguishing between an employee and a non-employee author in matters of copyright.
Relying on the statutory language and legislative history of section 101, the Supreme Court explained in Reid that in using these terms Congress “intended to describe the conventional master-servant relationship as understood by common-law agency doctrine,” and thus courts should “rely on the general common law of agency” to determine whether the individual is an employee or an independent contractor.
To aid in this inquiry, Reid identified thirteen non-exhaustive factors: (1) the hiring party’s right to control the manner and means by which the work is accomplished; (2) the skill required to create the work; (3) the source of the instrumentalities and tools; (4) the location of the work; (5) the duration of the relationship between the parties; (6) whether the hiring party has the right to assign additional projects to the hired party; (7) the extent of the hired party’s discretion over when and how long to work; (8) the method of payment; (9) the hired party’s role in hiring and paying assistants; (10) whether the work is part of the regular business of the hiring party; (11) whether the hiring party is in business; (12) the provision of employee benefits; (13) the tax treatment of the hired party. Other relevant factors may also be considered, so long as they are drawn from the common law of agency that Reid seeks to synthesize.”
C. Applying the Reid factors
The Companies’ contend that the District Court erred in its application of the Reid factors [by] construing certain facts in favor of Miller rather than the Companies. We are not persuaded.
We have cautioned against applying the Reid factors “in a mechanistic fashion.” Courts can easily misapply the Reid test because Reid merely provided a list of possible considerations that may or may not be relevant in a given case and gave no direction concerning how the factors were to be weighed. Thus, in balancing the Reid factors, courts must take care to disregard those factors that, in light of the facts of a particular case, are (1) irrelevant or (2) of indeterminate weight—that is, those factors that are essentially in equipoise and thus do not meaningfully cut in favor of either the conclusion that the worker is an employee or the conclusion that he or she is an independent contractor.
In Aymes, we provided additional guidance on the Reid analysis. In that case, while assessing whether the plaintiff was an “employee” under section 101, we flagged five core considerations that “will almost always be relevant [to the Reid analysis] and should be given more weight in the analysis, because they will usually be highly probative of the true nature of the employment relationship.” Aymes, 980 F.2d at 861. Those factors are: “(1) the hiring party’s right to control the manner and means of creation; (2) the skill required [of the hired party]; (3) the provision of employee benefits; (4) the tax treatment of the hired party; and (5) whether the hiring party has the right to assign additional projects to the hired party.”
Viewing the evidence in the light most favorable to the Companies, and having presented it as such above, we conclude as a matter of law based on the undisputed facts that Miller worked as an independent contractor when he produced the Screenplay. Below, we consider the Reid factors that are key to our analysis.
1. Control
In light of the close working relationship that without a doubt existed between Cunningham and Miller—who frequently met at each other’s homes to discuss the film and bounce ideas off one another—it is difficult to develop a clear picture regarding whether Manny maintained the “right to control the manner and means of creation” for Friday the 13th.
The evidence suggests that Cunningham’s involvement reflected limited control over Miller’s creative process—tutoring him on the elements of horror films, working in proximity with Miller and occasionally looking over Miller’s shoulder during drafting, and selecting or rejecting certain creative ideas, such as the setting and title of the film. Cunningham averred that he frequently met with Miller “to develop scenes and discuss ideas for the Screenplay”; that he was involved in the development of all “scenes, concepts, characters, elements, themes [and] plots in the Screenplay”; and that in an unspecified number of instances, he “dictated” an unknown number of unspecified changes for Miller to make to the Screenplay. This depiction suggests that Cunningham was involved in the development of the Screenplay and exercised at least some control over the drafting process.
Yet, as the District Court observed, “few of the examples of Cunningham’s control adduced by [the Companies] rise above the level of the sort of big picture approval authority and general suggestions that do not weigh heavily in favor of a right to control.” The closest that Cunningham comes to describing detailed control over Miller’s writing process such as would ascribe heavier weight to this factor is his testimony that he “[s]ometimes … stood over [Miller’s] shoulder making suggestions and contributions” while Miller wrote. Even crediting this assertion, however, Cunningham’s “suggestions and contributions” do not necessarily evince the type of comprehensive control that characterizes a traditional employer-employee relationship. Instead, that Cunningham made “suggestions and contributions” is more consistent with Miller’s description of the screenwriting process as a non-hierarchical, “creative collaboration and exchange of ideas” between himself and Cunningham.
Indeed, Scuderi’s alteration of the Film’s closing scene provides the only specific instance identified by the Companies in which the Screenplay was altered over Miller’s objections. Yet Scuderi’s alteration is not probative of any employer-employee relationship between Miller and Manny because Scuderi neither worked for Manny nor was otherwise Manny’s agent and Georgetown was not formally involved in the project until a year or more after the Screenplay was finished.
We note also that the Companies abandoned any claim to dual authorship of the Screenplay with Miller, who was credited exclusively as the screenwriter, implicitly reflecting that their suggestions and contributions were not sufficiently material to amount to “control” over the Screenplay.
Thus, if the evidence in the record regarding “control” weighs in favor of finding that Miller was Manny’s employee, it does so only marginally.
2. Skill
The parties do not dispute that Miller was working as a screenwriter beginning well before 1979. And Miller had already received a graduate degree studying theatre and had “written several published novels and the screenplays for three produced films.”
Courts adjudicating copyright cases involving professional creative artists have typically found the skill factor to weigh strongly in favor of independent contractor status. The Companies do not contest, nor could they, that screenwriting is a skilled profession and that Miller was a skilled screenwriter. Instead, they try to downplay the importance of Miller’s general skill, arguing that his skill should be discounted because (1) he had “minimal expertise in writing horror films,” and (2) Cunningham, by contrast, had some experience in the horror genre. Neither point is particularly persuasive.
We recognized in Aymes that those in professions akin to that of “architects, photographers, graphic artists, drafters” are often found by courts “to be highly-skilled independent contractors.” Like the computer programmer in Aymes, Miller “use[d] skills developed while a graduate student … and through his experience working” on other films. Aymes also makes clear that the court should focus on the “skill[s] necessary to perform the work,” rather than relying on “relative youth and inexperience.” Here, the evidence shows that Cunningham was familiar with the horror genre, but that he required Miller’s creativity and screenwriting experience to prepare and complete the Screenplay. Miller did not “merely transcrib[e] [Cunningham’s] instructions” when generating the treatment and Screenplay, and, contrary to the Companies’ assertions, Cunningham’s contributions—such as “rewriting, revising and restructuring the treatment”—did not “prove[ ] his ability” to do the creative work as a screenwriter. Aough Cunningham contributed to the drafting effort, he ultimately relied on Miller’s expertise to craft the Screenplay. Thus, under these circumstances, any skill of the hiring party in the field needed to create the work was eclipsed by the skill of the hired party and thus does not weigh in favor of treating Miller as an employee.
Accordingly, the skill factor weighs in favor of Miller’s status as independent contractor.
3. Employee benefits
The record shows that Manny never provided Miller with health insurance, paid vacation time, worker’s compensation benefits, a pension plan, or other types of benefits that courts have traditionally found probative of employee status.
The Companies attempt to avoid the force of this observation by recasting the benefits that were established by the MBA as “traditional” employee benefits. They highlight that the MBA gave Miller rights to preview the Film before public release, to receive residual and sequel payments on the Screenplay, to receive appropriate on-screen credit, and to WGA representation as needed to obtain such collectively bargained-for benefits.
We are unable to conceive of any of these as traditional employee benefits. Indeed, their availability through the WGA form only puts into stark relief the absence of benefits such as health insurance, life insurance, and disability insurance that the traditional employment relationship ordinarily entails.
Deferred compensation in the form of sequel or residual payments carries substantial uncertainty and risk. It does not align with typical employee benefits.
In Aymes, this court gave special weight to the fact that the hiring party did not pay traditional employment benefits, reasoning that it would be inequitable for a hiring party to benefit from a worker’s status as an independent contractor “in one context” and then “ten years later deny the worker that status to avoid a copyright infringement suit.” The Companies cannot have it both ways.
In sum, because Manny did not provide Miller any traditional employee benefits, the employee benefits factor weighs heavily in Miller’s favor.
4. Tax treatment
This court has held that the parties’ tax treatment of their relationship is, along with employee benefits, “highly indicative” of whether a worker should be treated as a conventional employee for copyright purposes. Other circuits are in accord.
Miller averred that Manny never withheld or deducted any taxes, social security, Medicare, or other comparable amounts from his compensation and that his compensation was paid precisely as designated in the two-page form agreement: one payment of $5,569 on completion of the first draft of the screenplay, and a second payment of $3,713 upon final submission. No reasonable jury could conclude on this evidentiary record that Miller was treated as an employee for tax purposes; the only evidence is to the contrary.
The tax-treatment factor weighs in favor of Miller’s independent contractor status.
5. Additional projects
When parties dispute whether a work was created by an individual as an employee or as an independent contractor, Reid tells us that examination of whether a hiring party had the right to assign additional projects is instructive because an independent contractor’s engagement is more likely to be “project-by-project,” with the relationship terminating upon completion of the contractually assigned project.
It is apparent from the record evidence that Manny hired Miller solely to write the screenplay for a single movie: Friday the 13th. Nothing in the “Writer’s Flat Deal Contract” gave Manny the right to assign Miller anything more: indeed, its title states that it was one, single, “flat deal.”
Accordingly, this factor too weighs in favor of independent contractor status.
6. Remaining factors
The remaining Reid factors—i.e., those that in Aymes we deemed less significant in the copyright context—on balance also favor treating Miller as an independent contractor.
Duration: Miller worked on the Screenplay for approximately two months. That the period was so brief weighs in Miller’s favor.
Method of payment: Manny paid Miller $5,569 when he finished the first draft of the Screenplay and $3,713 when he finished the final draft. This method of payment—i.e., a lump-sum payment that is “dependent on completion of a specific job”—is “a method by which independent contractors are often compensated.” This factor therefore weighs strongly in favor of classifying Miller as an independent contractor.
Source of instrumentalities and tools: As the District Court described, and the parties do not challenge, “Miller’s primary work on the screenplay—the writing of the screenplay—was done using his own typewriter and paper.” Yet, Miller also “used Cunningham’s photocopier and copy paper and relied on Cunningham’s secretary to re-type a draft of the screenplay.” Accordingly, this factor is neutral, and we disregard it.
Location of work: Miller worked primarily from his home, although he and Cunningham also frequently met “at each other’s houses and in [Cunningham’s] home office to discuss ideas and locations for the film.” Because Miller worked “primarily” from his home and at the time, neither of these workspaces—unlike an office building—was a traditional venue for conducting business, the location-of-work factor weighs slightly in Miller’s favor.
Discretion in setting schedule: Cunningham set general deadlines for Miller to meet, “consistent with the pre-production and production schedule,” but Miller had significant freedom in scheduling his daily work hours—including, for example, choosing to do his writing primarily in the morning because he was a “morning person.”. Miller’s discretion over his day-to-day schedule weighs in favor of classifying him as an independent contractor.
Hiring assistants: The authority to hire assistants “will not normally be relevant [to the Reid inquiry] if the very nature of the work requires the hired party to work alone.” Here, the Companies do not dispute that screenplay writing is generally solitary work. Nor do they resist the District Court’s observation that “the nature of Miller’s work [in writing the Screenplay] did not lend itself to the use of assistants” and “[t]here is no indication that Miller sought to hire any.” Accordingly, this factor merits “no weight.”
Business entity: Although Manny was a business, which is often consistent with having employee workers, this factor has “very little weight in [the Reid] analysis” Here, it weighs only marginally in the Companies’ favor.
Business type: That the type of Manny’s business is producing screenplays for films and that Miller is a screenwriter weigh in favor of finding that Miller is an employee. This factor accordingly favors employee status.
7. Application of Reid factors, in summary
Viewing them altogether, we have no difficulty in concluding that the Reid factors weigh decisively in favor of classifying Miller as an independent contractor.
In sum, Miller must be considered the author of the Screenplay, and the Act empowers him now to terminate the rights in the Screenplay that he earlier permitted the Companies. See 17 U.S.C. §§ 201, 203. We therefore affirm the District Court’s award of summary judgment to Miller on this issue.
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Check Your Understanding – Horror Inc.
Question 1. True or false: Because a “work made for hire” is a statutory exception to the general rule of author-ownership of copyright, the party claiming the exception bears the burden of proving that the exception applies.
Question 2. How did the Aymes decision provide additional guidance with respect to the Supreme Court’s decision in CCNV v. Reid?
Question 3. True or false: Employee benefits and tax treatment generally do not factor into a determination of whether or not a hired party is an employee for purposes of copyright law.
In determining whether or not a work was “prepared by an employee within the scope of his or her employment,” the determinative question can come down to whether or not the work was prepared “within the scope” of an employee’s “employment.” This issue is addressed in the following two cases, which involve similar factual scenarios, but opposite outcomes.
Some things to consider when reading Miller:
- The court’s interpretation and applications of the term “within the scope of his or her employment” as it appears in subsection (1) of section 101’s definition of “work for hire.”
- The reason why the court found it appropriate to turn to the Restatement (Second) of Agency to interpret the term.
- The fact that even if the court had found that Miller’s were not works for hire, the case would have been dismissed because Miller had failed to register his purported copyrights. (Registration will be addressed in more detail later in this casebook.)
Miller v. CP Chemicals, Inc.
808 F. Supp. 1238 (D.S.C. 1992)
JOSEPH F. ANDERSON, Jr., District Judge.
This is an action by David Miller, Sr., a former employee of the defendant, CP Chemicals, Inc. (“CP”) arising out of a dispute over the ownership to certain rights in computer programs. In his complaint, Miller alleges that he owns the copyrights to computer programs he developed while he was employed by CP. He further alleges that the defendant has continued to use these programs without authorization and that such use constitutes copyright infringement. For the reasons set forth below, the court concludes that the plaintiff’s claim for copyright infringement should be dismissed both because the plaintiff has failed to register any copyrights on the computer programs in issue and because, even if the programs had been properly registered, they constitute “work for hire” within the meaning of the Federal Copyright Act.
The facts viewed in the light most favorable to the plaintiff are as follows: Miller was initially employed by CP as a technician in the quality control laboratory. His job entailed analyzing finished products to assure their conformance to customer specifications. After about three months, Miller was promoted to the position of senior laboratory chemist. In that capacity, he first began working with a computer in connection with his job by utilizing a Lotus 1–2–3 software package, which he had requested that CP purchase, for the purpose of keying in the company’s computer analytical data regarding customer product specifications. In February, 1989 Miller was promoted to laboratory supervisor and, in that capacity, assumed overall responsibility for the operation of the quality control laboratory. At this time, CP began renovating the quality control lab, and Miller organized the laboratory’s records to meet EPA and OSHA regulations. Miller also completed the computerization of all analytical data generated in the lab. During this process, Miller became concerned about the efficiency of performing manual calculations in the quality control lab for in-process adjustments to one of CP’s commercial products. As a result, Miller wrote a computer program that computed complex mathematical calculations, eliminating manual calculations previously used to make the required adjustments to this product. This computer program simplified his duties with CP and reduced the chance of error in calculation.
At this time, Miller’s supervisors, Jerry Poe and Wilson Oldhouser, approached him regarding computerizing the calculations for other product adjustments. Oldhouser then told Miller to continue writing the programs, and Miller did develop more computer programs.
Miller performed most of the work on the computer programs at his home and on his own time. Miller, who was an employee paid by the hour, never requested or received additional or overtime pay for his work on the computer programs.
According to Miller, Poe and Oldhouser orally agreed with him that Miller would retain the copyrights in the computer programs that he developed and that CP could use them only so long as he remained employed with CP.
Miller was terminated from his employment in June, 1991, immediately following his arrest in a drug related charge. Subsequent to his termination, Miller demanded that CP either return the computer programs that he had written or pay him a license fee for continued use of the programs. CP refused these demands.
1. Copyright Registration
[Plaintiff’s lack of registration is fatal to his copyright infringement cause of action and requires its dismissal.]
2. Work For Hire
Section 101 of the Copyright Act defines “work for hire” two different ways. Subsection (1) provides that a “work prepared by an employee within the scope of his or her employment” is a work for hire. Subsection (2) deals with works specially ordered or commissioned.
In this case, Miller was a full-time employee of CP. Clearly, the relationship between Miller and CP was that of master and servant as opposed to employer and independent contractor. Thus, subsection (1) of section 101 is the correct definition to apply in this case.
A. Scope of Employment
Miller contends that the computer programs were a result of his own initiative and that they were written and tested at his home on his personal computer. Miller also asserts that he is an hourly employee and was never paid for the work that he did in developing the computer programs.
On the other hand, CP asserts that the computer programs were created during the course of Miller’s employment with CP and solely for the purpose of simplifying his duties at CP. CP also asserts that the programs are product specific in that they relate directly with the calculations done for specific products manufactured by CP. CP also claims that Miller, as supervisor, had broad responsibilities for organizing and updating the quality control lab, and that writing the computer programs, although not required, was in connection with and incidental to his job. Finally, CP argues that Miller’s position that the computer programs were not created within the scope of his employment is inconsistent with his other claim that those same programs were developed pursuant to an alleged employment contract.
In Commission For Creative Non-violence v. Reid, 490 U.S. 730, 741 (1989), the Court held that “the term ‘employee’ should be understood in light of the general common law of agency.” Thus, this court finds that the general common law of agency would also be relevant to the analysis of the term “within the scope of employment.”
The RESTATEMENT (SECOND) OF AGENCY § 228 (1958) provides:
(1) Conduct of a servant is within the scope of employment if, but only if: (a) it is of the kind he is employed to perform; (b) it occurs substantially within the authorized time and space limits; [and] (c) it is actuated, at least in part, by a purpose to serve the master.
The comments to section 229 state that acts incidental to authorized acts may be within the scope of the employment:
Acts incidental to authorized acts. An act may be incidental to an authorized act, although considered separately it is an entirely different kind of an act. To be incidental, however, it must be one which is subordinate to or pertinent to an act which the servant is employed to perform. It must be within the ultimate objective of the principal and an act which it is not unlikely that such a servant might do. The fact that a particular employer has no reason to expect the particular servant to perform the act is not conclusive.
RESTATEMENT (SECOND) OF AGENCY § 229 comment b (1958).
In this case, Miller was not hired primarily for the development of computer programs. However, as supervisor of the quality control laboratory, he was responsible for the organization and updating of the laboratory. Thus, the development of the computer programs was at least incidental to his job responsibilities because it was “within the ultimate objective of the principal and an act which it is not unlikely that such a servant might do.”
With regard to the second element, Miller worked primarily, if not entirely, on the computer programs at his home on his own time and for no additional pay. On the other hand, the work was performed during the time period in which he was employed by CP.
With regard to the third element, there is no question but that the development of the computer programs was actuated, at least in part, by a purpose to serve the master. The initial program was created to simplify Miller’s job and to eliminate errors, which was for the benefit of both Miller and CP. Officials at CP expressly asked Miller to continue to develop computer programs that dealt with other products of CP. Finally, each computer program dealt specifically with a product manufactured by CP. The ultimate purpose of the development of the computer programs was to benefit CP by maximizing the efficiency of the operation of the quality control lab.
After considering the factual circumstances in this case in light of the Restatement factors and the case law concerning the issue, the court concludes that the development of the computer programs by Miller was within the scope of his employment.
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Check Your Understanding – Miller
Question 1. Why did the Miller court find it was appropriate to turn to the Restatement (Second) of Agency to interpret the term “within the scope of employment”?
Question 2. True or False: In Miller, the court found that subsection (1) of section 101 provides the correct definition of “work for hire” in this case because the relationship between Miller and CP was that of master and servant as opposed to employer and independent contractor.
Question 3. Which of the following facts did the court rely on in determining that the computer programs were not works for hire?
Socratic Script
The Restatement (Second) of Agency states that “[c]onduct of a servant is within the scope of employment if, but only if … (b) it occurs substantially within the authorized time and space limits[.] The court found that Miller worked “primarily, if not entirely, on the computer programs at his home on his own time and for no additional pay.” How was the court nonetheless able to rationalize its conclusion that the computer programs fell within the scope of his employment?
FOOTNOTES:
1 17 U.S.C. § 201(a).
2 Dramaturgs provide a range of services to playwrights and directors in connection with the production and development of theater pieces. According to Thomson’s testimony, the role of the dramaturg “can include any number of the elements that go into the crafting of a play,” such as “actual plot elements, dramatic structure, character details, themes, and even specific language.”
3 Thomson claims that she seeks 16% of the proceeds “because of her respect for Larson’s role as the principal creator of the work.” Thomson derives the 16% figure in the following way: she alleges that 48% of the Rent script is new in relation to the 1994 Workshop version (prior to her involvement); as co-author, she is, therefore, entitled to 50% of this part (or 24% of the total revenues); but since there are three components to Rent (book, lyrics, and music) and she did not contribute to one (music), she is entitled to 2/3, or 16% of the total revenues.
4 We also reject the suggestion of respondent and amici that the § 101(1) term “employee” refers only to formal, salaried employees. While there is some support for such a definition in the legislative history, see Varmer, Works Made for Hire 130; n. 11, infra, the language of § 101(1) cannot support it. The Act does not say “formal” or “salaried” employee, but simply “employee.” Moreover, respondent and those amici who endorse a formal, salaried employee test do not agree upon the content of this test. Compare, e.g., Brief for Respondent 37 (hired party who is on payroll is an employee within § 101(1)) with Tr. of Oral Arg. 31 (hired party who receives a salary or commissions regularly is an employee within § 101(1)); and Brief for Volunteer Lawyers for the Arts, Inc., et al. as Amici Curiae 4 (hired party who receives a salary and is treated as an employee for Social Security and tax purposes is an employee within § 101(1)). Even the one Court of Appeals to adopt what it termed a formal, salaried employee test in fact embraced an approach incorporating numerous factors drawn from the agency law definition of employee which we endorse. See Dumas, 865 F.2d, at 1104.
