Commerical Photography and "Work for Hire"

My institution owns the photonegatives of a commercial photographer who was active from the 1930's to the 1970's. When we acquired the negatives we also obtained a transfer of this photographer's copyright to these images. Over a thousand different companies and individuals "hired" him to take photographs of various buildings, people, and events.

Please let me know how I might determine if this photographer actually held copyright to these images or if these would be classified as work for hire. My institution, which owns these negatives, wants to put some of these images on the Web and not be in violation of copyright.

Part of the problem as I understand it:

Although the general rule is that the person who creates a work is the author of that work, there is an exception to that principle: the copyright law defines a category of works called "works made for hire." If a work is "made for hire," the employer and not the employee is considered the author. The employer may be a firm or organization or an individual.

I am told that prior to Jan 1, 1978: "Photographers retained no rights in pictures after delivery; but, that they could reserve rights by an explicit contractual provision" (Jeffery E. Jacobson and Bruce E. Colfin, "photographers and the 'Work for Hire' Doctrine," New York Law Journal 196 (26 Dec 1986), p. 5.)

I don't believe this photographer reserved his rights by an explicit contractual provision.

However I also understand that: Section 101 of the copyright law defines a work made for hire as: a work prepared by an employee within the scope of his or her employment.

I'm confident that this photographer was not a regular, salaried employee for the various organizations and individuals he took photographs for.

The following is some additional information.

Sincerely,

Peter J. Roberts
<libpjr[_at_]langate.gsu.edu>

DETERMINING WHETHER A WORK IS MADE FOR HIRE Whether or not a particular work is made for hire is determined by the relationship between the parties. This determination may be difficult because the statutory definition of a work made for hire is complex and not always easily applied. That definition was the focus of a recent Supreme Court decision (Community for Creative Non-Violence v. Reid, 490 U.S. 730 [1989]). The court held that to determine whether a work is made for hire, one must first ascertain whether the work was prepared by (1) an employee or (2) an independent contractor.

If a work is created by an employee, part 1 of the statutory definition applies and generally the work would be considered a work made for hire. IMPORTANT: The term "employee" here means an employee under the general common law of agency. (See below for further information about agency law.)

If a work is created by an independent contractor (that is, someone who is not an employee under the general common law of agency), the work is a specially ordered or commissioned work and part 2 of the statutory definition applies. Such a work can be a work made for hire only if (1) it comes within one of the nine categories of works listed in part 2 of the definition and (2) there is a written agreement between the parties specifying that the work is a work made for hire.

Employer-Employee Relationship Under Agency Law

The court identified certain factors that characterize an "employer-employee" relationship as defined by agency law:

1. Control by the employer over the work (e.g., the employer has a voice in how the work is done, has the work done at the employer's location, and provides equipment or other means to create work).
2. Control by employer over the employee (e.g., the employer controls the employee's schedule in creating work, has the right to have the employee perform other assignments, determines the method of payment, and/or has the right to hire the employee's assistants).
3. Status of employer (e.g., the employer is in business to produce such works, provides the employee with benefits, and/or withholds tax from the employee's payment).

These factors are not exhaustive. The court left unclear what factors must be present to establish the employment relationship under the work for hire definition, but held that supervision or control over creation of the work alone is not controlling. All or most of these factors characterize a regular, salaried employment relationship, and it is clear that a work created within the scope of such employment is a work made for hire (unless the parties involved agree otherwise).

Examples of works for hire created in an employment relationship are:  

• A software program created by a staff programmer for Creative Computer Corporation.
• A newspaper article written by a staff journalist for publication in a daily newspaper.
• A musical arrangement written for XYZ Music Company by a salaried arranger on its staff.
• A sound recording created by the staff engineers of ABC Record Company.

The closer an employment relationship comes to regular, salaried employment, the more likely it is that a work created within the scope of that employment would be a work made for hire. However, since there is no precise standard for determining whether or not a work is made for hire under the first part of the definition, consultation with an attorney for legal advice may be advisable. Received on Mon Jun 14 1999 - 19:38:53 GMT