On 1/22/99, Michael Leventhal <michael[_at_]wiredlaw.com> wrote:
>
> On 1/21/99, Stephen Fishman <sfish55[_at_]yahoo.com> wrote:
> >
> > On Sun, 17 Jan 1999, Barbara Gall <bgall[_at_]sah.com> wrote:
> > >
> > > I seem to recall some case (Second Circuit, maybe?) which held
> > > that a copyright assignment contained in a work-for-hire agreement
> > > executed before the work was created was invalid. Help?
> >
> > I think the case you mean is Schiller & Schmidt, Inc.v. Nordisco
> > Corp., 969 F2d 410 (7th Cir. 1992).
>
> Does this mean that work for hire provisions with the standard fall
> back language (i.e. -- "in the event that this Agreement is
> determined not to be a work for hire, Contractor hereby assigns all
> rights, etc.") would not be a valid way of protecting against a
> determination that the work was not a work for hire? If so, how
> does one protect his or her client?
I believe there's some confusion here that needs to be cleared up (unless I missed an intervening post). Schiller stands for the proposition that one cannot designate *retroactively* that a work is one made for hire.
In Schiller an independent photographer took some pictures for Schiller's catalog. The photographer was not an employee of Schiller, so the only way the photos would be works made for hire is if they were (1) one of the works enumerated in Section 101(2), (2) commissioned by Schiller, and (3) there was a writing signed by both parties to that effect. The first two elements were met, but there was no writing at all prior to the creation of the work. Instead, the photographer signed a statement years later (well after the pictures were taken and even after the suit was brought). Even then they didn't get it right because only the photographer signed, whereas the statute requires signatures of both parties.
The decision was written by Posner and he explains that the purpose served by requiring that the writing precede the creation is to "identify[] the (noncreator) owner unequivocally" so that the work "will be readily marketable."
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