Re: Re: Re: Some advice requested for a minor

I was /not/ making the assumption that the WMFH arose in the context of employment. To the contrary, I was assuming that it arose in any context but employment -- all of which, as you point out, require a written agreement. Our disagreement -- and I'm not sure who's right -- turns on whether the contract with a minor is void ab initio, or subject to rescission. If it is void ab initio, then you are correct and the minor is the author, ab initio. But if it is only subject to rescission (or enforcement) at the election of the minor or minor's guardian, then the work is created pursuant to a written agreement as a WMFH in accordance with federal law. Rescission will relieve the parties of executory obligations, and restore them to their pre-contract position insofar as the contract has not been performed, but, as I said, it won't un-mow the lawn -- or divest a statutory author of its copyright. At least that's my intuition without doing the research.

Where the contract with a minor is void ab initio, I think there is a strong case for federal preemption under sec. 301 because you are dealing with the rights of the federally defined author under sec. 106, as to which state law is expressly preempted. The copyright in a WMFH should not be void in some states and valid in others.

John Noble

At 4:15 PM -0500 11/22/05, Vance R. Koven wrote:
>I think you're assuming that WMFH "agreements" pertain to
>employer-employee matters only. It is true that in most places a
>minor can be an employee, in which case the rule for WMFH would
>hold. In fact, no agreement is really necessary in an employment
>situation, since the character of the relationship is determined
>based on facts and circumstances; an agreement of employment might
>be powerful evidence of the employee's status, but that's all it
>would be. There are eight other categories of WMFH under the US law,
>however, all of which explicitly require an agreement to be
>effective. If the agreement is voidable, and is then voided, it
>becomes just that: void, a nullity ab initio. No agreement, no WMFH.
>In that case, I'd think the minor *would* then become the author,
>and would be treated as such as from the point of creation of the
>work. There might be some equitable adjustment, maybe, for the other
>party's earnings under the copyright, but I doubt that it would go
>much beyond that.
>
>Vance
>
>
>On 11/21/05, J. Noble <<mailto:jfnbl[_at_]earthlink.com>jfnbl[_at_]earthlink.com> wrote:
>
>>At 2:18 PM -0500 11/21/05, J. Noble wrote:
>>
>>>(really folks, do we have to
>>>get into federal common law and the preemption issue?).
>>>
>
>
>At 1:30 PM -0500 11/21/05, Agenbroad, James \(Civ,ARL/CISD\) wrote:
>
>>If a minor revokes a WMFH contract what happens? Does he become the
>>author? What are the FEDERAL (since copyright is an expressly federal
>>matter) law on revocability of contracts by minors?
>>
>
>
>You just had to go there, didn't you. Federal common law, once
>thought not to exist (Erie?), pops up in the strangest places --
>usually because it's essential to have a uniform rule to fill the
>interstices of a comprehensive federal statutory scheme. Here, I
>think it's pretty clear that there is no federal common law of
>contract just for copyrights. Sec. 301 limits the scope of
>preemption to "legal or equitable rights that are equivalent to any
>of the exclusive rights within the general scope of copyright as
>specified by section 106," and expressly does not preempt "any
>rights or remedies under the common law or statutes of any State
>with respect to - . . . (3) activities violating legal or equitable
>rights that are not equivalent to any of the exclusive rights . . .
>." Generally speaking, then, the Copyright Act does not preempt
>state contract law, cf. ProCD v. Zeidenberg. So a minor who authored
>and licensed a work might be able to rescind the license agreement
>under state law.
>
>
>But the WMFH case is different. Ownership of the copyright would be
>a matter of federal law -- not federal common law but federal
>statute -- depending upon whether there was a written WMFH
>agreement, withal. The court might look to state law to decide
>whether there /ever was/ an agreement, i.e. offer, acceptance and
>consideration; but the minor's right to rescind an agreement isn't
>going to help because it presumes that there /was/ an agreement,
>otherwise valid, but subject to rescission. Rescission of the WMFH
>contract under state law shouldn't divest the statutory "author" of
>its copyright or turn the minor into an "author" under federal law.
>Copyright is not something that rescission can "restore" to the
>minor because the minor didn't have it in the first place. All he
>had was the labor he provided for compensation, and you can't give
>that back. It's like hiring a kid to mow your lawn. His mother might
>rescind the agreement if he's supposed to do it tomorrow, but she
>can't have the court un-mow the lawn if he did it yesterday. That's
>not to say that the kid is without a remedy if the WMFH contract was
>oppressive. He might be entitled to recover the value of his labor
>in quantumn meruit under state law, and maybe even under the Fair
>Labor Standards Act -- but I don't think he gets the copyright.
>
>
>John Noble
>
>>-----Original Message-----
>>From: CNI-COPYRIGHT -- Copyright & Intellectual Property
>>[mailto:<mailto:CNI-COPYRIGHT[_at_]cni.org> CNI-COPYRIGHT[_at_]cni.org] On
>>Behalf Of Bob Panzer
>>Sent: Friday, November 18, 2005 7:45 PM
>>To: CNI-COPYRIGHT -- Copyright & Intellectual Property
>>Subject: [CNI-(C)] Re: Some advice requested for a minor
>>
>>Current copyright term for individuals is life + 70 years NOT life + 75.
>>
>>Sincerely,
>>
>>Robert Panzer
>>
>>VAGA (Visual Artists and Galleries Association, Inc.)
>>350 Fifth Avenue
>>Suite 2820
>>New York, NY 10118
>>Tel: 212 736 6666
>>Fax: 212 736 6767
>><mailto:rpanzer[_at_]vagarights.com>rpanzer[_at_]vagarights.com
>>
>>-----Original Message-----
>>From: CNI-COPYRIGHT -- Copyright & Intellectual Property
>>[mailto:<mailto:CNI-COPYRIGHT[_at_]cni.org>CNI-COPYRIGHT[_at_]cni.org] On
>>Behalf Of J. Noble
>>Sent: Friday, November 18, 2005 3:15 PM
>>To: CNI-COPYRIGHT -- Copyright & Intellectual Property
>>Subject: [CNI-(C)] Re: Some advice requested for a minor
>>
>>Federal law gives you a copyright, and it doesn't matter how old you
>>are -- it's good until you've been dead for 75 years. Astrid
>>Kirchjerr is still collecting on the photos she took of the Beatles
>>while they were playing strip-joints in Hamburg. Whether you can
>>
>license your rights as a minor might be a separate state law issue,
>but it's not obvious, and it doesn't arise unless you or your legal
>
>guardians want to set aside the contract (really folks, do we have to
>get into federal common law and the preemption issue?).
>
>
>Unless the friend raised the issue of competency to enter into a
>contract because he was worried that you would renege, then just
>leave it alone. Don't worry -- be happy. When you give him the
>photographs, he probably gets a non-exclusive, revocable license to
>reproduce and distribute. Without more, i.e. without a written
>agreement, he almost certainly doesn't get any right to modify the
>photos or grant anyone else permission to use them, and you retain
>the right to license anyone else to reproduce and distribute them. If
>you want to get fancy, write it down and get your friend to sign it:
>"Marissa grants ____ the revocable, non-exclusive, non-assignable
>right to reproduce and distribute, without alteration, any photograph
>that she delivers to him, solely for purposes of advertising and
>promoting musical acts that he represents, and that Marissa
>photographs at his request." If he's worried that you might change
>your mind, or that your parents are going to sweep in and revoke his
>rights over your objection, then get your father or mother to add
>"approved" and a signature.
>
>So, just wondering, how much of the music on your iPod is paid for,
>Marissa?
>
>John Noble
>
>At 6:29 PM -0500 11/17/05, Marissa wrote:
>>Hello all,
>>
>>I am 17 years old and am starting my career as a photographer. A
> >friend of mine asked me if I would take some pictures for him to help
>>promote some bands. Now obviously I can't enter into a contract, so I
>>have two questions.
>>
>>1) How do I maintain my copyright and integrity of these pictures?
>>
>>2) What are the downfalls of entering into this as a minor?
>>
>>Please, all opinions and advice are welcome.
>>
>>Thanks,
>>
>>Marissa
>>
>><http://www.photographyexposed.com/> www.photographyexposed.com
>>
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>--
>Vance R. Koven
>Boston, MA USA
><mailto:vrkoven[_at_]world.std.com>vrkoven[_at_]world.std.com
Received on Wed Nov 23 2005 - 04:45:00 GMT