In my entry about Orphan Works, I used the example of the stranger who takes a picture of the family at the Grand Canyon. One reader asked: "Couldn't you just consider the photograph a 'work for hire,' as you 'employed' the stranger to take it on your behalf?" (First, I hope and trust that my copying of that sentence is within fair use, I hope and trust.... Moving on...) the law of WMFH is highly counter-intuitive. The U.S. Supreme Court ruled back in 1989 that the determination of an "employee" is based on traditional state law concepts of employment, which usually involve questions of supervision, regular hours, tax withholding, etc. The kind stranger is clearly not an employee. Ah, but WMFH also applies to works by "independent contractors." The good volunteer tourist may well be my independent contractor for that moment, but even so, I am out of luck. For such a work to be treated as a WMFH, we have to have a written instrument signed by both of us, and meet more requirements of the law.
I am repeatedly cautioning anyone who will listen about the importance of having a written agreement with photographers, web-designers, programmers, and others who are hired on a project basis. The person you paid to develop the new work may easily receive your money and continue to hold the copyright. If you want to make a new version of the work or use it in a different way, you may have to go back to the contractor and secure permission and perhaps pay more money. That person may hold the rights to make various uses of the work or new versions of it. Frankly, when I give advice to photographers and others, I usually conclude that a clear agreement is in their best interest, too.
What should that contract provide? You have many choices. It could be an agreement that the work is WMFH. It could be a simple transfer of copyright. It could be a license allowing you to have various rights of use and allowing other rights to the contractor. The options are many and the law is quirky. Proceed with caution, whatever your role in the deal!
If I am so full of advice, how did I manage to let that stranger get away without my whipping out a handy agreement for him to sign on the spot? Life is not perfect. The cliffs around us were steep and jagged. Maybe vertigo is the answer to all copyright dilemmas. You know, Alfred Hitchcock messed up his copyright agreements, too.
PS: The case I mention is Community for Creative Non-Violence v. Reid, 490 U.S. 730 (1989).
Comments (1)
I'm no attorney, just a teacher, commercial artist, and licensor. This "work-made-for-hire" tactic in the USA is trickier and more demanding than I thought. It's a piece of cake with genuine employees on a genuine payroll, but with real burdens and real complications for everyone else.
For non-employees, Title 17 USC appears to require an advance written agreement *and* more: the work must fit one or more of eight explicit categories that are exclusively eligible for work-made-for-hire under Title 17. Still photography at the Grand Canyon doesn't appear to fit *any* of those eight categories.
It's common for commercial artists to face, from prospective clients, take-it-or-leave-it agreements that attempt a work-made-for-hire while simultaneously falling back on an assignment of copyright when the work-made-for-hire should/will fail to stand up under close legal scrutiny.
Posted by Walter Dufresne | May 20, 2008 12:15 PM
Posted on May 20, 2008 12:15