Copyright Conundrum #1: Copyright may not be transfered prior to creation of a work

I am a volunteer working with the Advertising Photographers of America (APA) on a Copyright FAQ for photographers. I will present several topics for discussion here and would appreciate responses from forum members. I am not an attorney but I am conversant in copyright law and associated cases. I am new to this forum, so please forgive any questions that might have been answered in the archives. My questions will address copyright as it relates to photography and photographers.

Assertion:
A contract between a photographer and a client cannot in itself serve to transfer copyright ownership from the photographer to the client if the contract is executed prior to the creation of the work. However, the contract may bind the author to transfer ownership through a separate writing executed after creation of the work. Copyright law requires that a transfer of copyright be executed in writing, by the author of a work. As the photographer is not an author of a work until such time as the work is created, the photographer cannot legally transfer copyright ownership in works not yet created. Exceptions: works made for hire, works created by an employee of the client.

I do not believe that Bowers v Baystate is in conflict with my assertion, or that common law copyright or state law will trump copyright law under the above described scenario. But I stand ready to be corrected.

Respectfully
Jeff Sedlik
APA Received on Mon Nov 17 2003 - 21:12:45 GMT