I have 2 notes on this conversation.
Firstly, we should be careful not to conflate the type (1) employer/employee WMFH which requires NO written instrument with the type (2) specially commissioned case which does. It is conceivable that the courts might construe them differently.
Secondly, WMFH contracts governing the works of underage creators are hardly unusual: How old were Little Richard or Michael Jackson when they started their careers?
From: CNI-COPYRIGHT -- Copyright & Intellectual Property [mailto:CNI-COPYRIGHT[_at_]cni.org] On Behalf Of J. Noble Sent: Monday, November 28, 2005 11:00 AM To: CNI-COPYRIGHT -- Copyright & Intellectual Property Subject: [CNI-(C)] Re: [CNI-(C)] Re: [CNI-(C)] Re: Some advice requested for a minor
Right, but the federal common law would be a federal court construction of the term "parties expressly agree in a written instrument signed by them." The one thing we do need is a uniform rule so that copyright ownership is settled. So this one is headed for the Supreme Court. What should be the federal common law rule on the capacity to "agree"?
A quick Westlaw search suggests that state laws are all over the place.
They turn on ages ranging from 14 to 18; they allow from 1 year to
forever to repudiate the contract after the minor reaches the age of
majority. Most states distinguish between executory and non-executory
contracts (the WMFH would be executory until the work was finished and
non-executory after it was done and paid for). Some reach non-executory
contracts where there is a "deliverable" that can be returned (kid
delivered the work, not the copyright?). Most states exempt contracts
for "necessities" but it's a flexible concept (an income?). Others
distinguish real estate contracts on equitable grounds where the buyer
has made improvements on the property bought from a minor (how about the
marketing expense on a top-selling computer game created as a WMFH by a
17 year-old?). Still others distinguish between void contracts (unfair)
and voidable contracts (fair enough). Some federal courts hold that
state law governs the capacity to contract with the federal government;
but at least one case holds that a minor has capacity, notwithstanding
state law, to enter a plea agreement on federal charges. My favorite is
the IRS ruling that minors can't compromise a tax debt, and parents
can't compromise it for the minor, but who cares because the parents are
liable for unpaid taxes owed by a minor child, so why should the IRS
compromise.
http://www.irstaxattorney.com/offer-in-compromise/minor_child.html.
I would avoid this quagmire and go with plain language. If there's an express agreement in a written instrument, it's a work made for hire and copyright belongs to the hiring party. If the kid got screwed he can sue for unjust enrichment, fraud in the inducement, and tortious interference with prospective economic advantage. I'll give him a constructive trust on future profits. I'll even give him punitives. But not the copyright -- when the work may have been contributed to a compilation, the owner may have spent a million dollars on a marketing campaign, third parties have licensed the distribution rights, and somebody bought the motion picture rights, before the kid changed his mind.
John Noble
At 3:30 PM -0500 11/23/05, Vance R. Koven wrote:
Well, I think then we have to look at the policy underlying the nullification of contracts by minors. The law frowns on taking advantage of immature persons, and set up this rather rough-justice policy to put people on notice that if they contract with a child, they do so at considerable risk. To deny the minor the benefit of a copyright because (s)he entered into a contract on which almot universal public policy discourages would be a clear violation of that policy. Granted that the policy is a state common-law one (originally, though it may be completely covered by statute now), I think a federal court ruling on a copyright case would look to that policy to inform the federal policy, which I guess is what "federal common law" means nowadays.
On 11/22/05, J. Noble <jfnbl[_at_]earthlink.com> wrote:
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 <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
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: CNI-COPYRIGHT[_at_]cni.org
<mailto: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
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 rpanzer[_at_]vagarights.com -----Original Message----- From: CNI-COPYRIGHT -- Copyright & Intellectual Property [mailto: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
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 mycareer 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 > > www.photographyexposed.comarchive at
<http://www.photographyexposed.com/>
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-- Vance R. Koven Boston, MA USA vrkoven[_at_]world.std.com -- Vance R. Koven Boston, MA USA vrkoven[_at_]world.std.comReceived on Tue Nov 29 2005 - 03:43:46 GMT
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