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

At 11:12 AM -0500 11/17/03, Jeff Sedlik wrote:
>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.

Contract law regularly recognizes the present assignment of a future interest. I don't think the Copyright Act would compel a different result here. I have seen work-for-hire agreements that take a belt and suspenders approach -- describing the arrangement as work for hire, but also including language that purports to be a present assignment of all right, title and interest, including copyright, in the commissioned work. At the very least, the photographer would have an estoppel problem if he sued for infringement on a claim that the assignment was invalid.

John Noble Received on Tue Nov 18 2003 - 02:25:59 GMT