Re: copyright and movie props

On 03/22/2000, Robert E. Jones, III <rjones[_at_]robjob.com> wrote:
>
> A designer/maker made a prop for a famous film. That prop figured
> prominently in the film. Now the designer/maker of the prop would
> like to recreate the prop and sell reproductions of the prop on
> his own.
>
> Does anyone know if a prop falls under the definition of a "work
> made for hire" as a "work specially commissioned for use ... as
> part of a motion picture ... if the parties expressly agree in a
> written instrument signed by them that the work shall be considered
> a work made for hire." If there is no instrument, would the copyright
> be retained by the prop's designer/maker? Or could the movie studio
> claim rights to the prop?

Your analysis assumes that the prop was created in 1978 or after (prior to the 1976 Act, the work-for-hire doctrine was treated very differently), and that the designer is not an employee of the studio. If the designer is an employee, the studio owns the prop design.

If the designer is not an employee, then I would agree that the prop is "specially commissioned," and there would have to be a written agreement to make it a work-for-hire. In the absence of a written agreement, the designer would own the copyright.

[There is a weak argument that the studio is a joint author, but that would not prevent the designer from distributing copies; it would only impose an obligation to account for half of the profits.]

Tyler T. Ochoa
Associate Professor
Whittier Law School
<tochoa[_at_]law.whittier.edu> Received on Thu Mar 23 2000 - 22:19:05 GMT