The Work For Hire Doctrine Before And After The Copyright Act of 1976

Imagine you are an inspiring film producer with a terrific idea for a major television mini-series or feature film. In order to pitch your product to the studios or an established producer who can arrange financing, you need a script.

After shopping around you find a struggling writer who agrees to write your script for a fee. You pay this writer the agreed upon fee. While you understood that you now own the script, there was never a writing signed by the parties defining the respective rights. The writer then registers the script with the Screen Writers Guild and the issue becomes who owns the copyrights.

The answer to this question depends on when the script was created. If the script was created before 1978 the Copyright Act of 1909 applies. The Copyright Act of 1909 provided that the proprietor of any work copyrighted....by an employer for whom such work is made for hire is entitled to a renewal and extension of the copyright. The 1909 Act did not define the term works made for hire or employer.

Up until around 1965 that federal courts applied the work for hire doctrine only to cases in which a traditional employer-employee relationship existed between the hiring party and the creator of the work. However, during this period the courts expanded the concept to include less traditional relationships, as long as the hiring party that the right to control or supervise the artist work.

In a case entitled Twentieth Century Fox v Entertainment Distributing, Doubleday convinced General Eisenhower in 1947 to write his memoirs about his efforts as the Supreme Commander of the Allied Expeditionary Forces during World War II. The agreement was prepared with income tax considerations to allow General Eisenhower to obtain long term capital gains by granting an option to purchase his script.

Doubleday granted various rights to Fox who later sued a company called Dastar for copyright infringement. The issue was whether General Eisenhower wrote his memoirs under a work for hire. The court stated that when on person engages another, whether as employee or independent contractor, to produce a work of an artistic nature, that in the absence of an express contractual reservation of the copyright in the artist, the presumption arises that the mutual intent of the parties is that the title to the copyright shall be in the person at whose instance and expense the work is done.

The Copyright Act of 1976 embodies a clear break with prior doctrine of work for hire. The Copyright Act of 1976 states the copyright vests initially with the author. The Act defines a work for hire as work prepared by an employee within the scope of his or her employment, or if the work fits into one of nine categories and there is a writing signed by the parties that the work is a work for hire.

In order to determine if the there was a traditional employer-employee relationship common law principles apply under what was referred to as a master-servant relationship. The courts consider the extent of control the master exerts over the details of the work, whether the one employed is engaged in a distinct occupation or business, the skill required, whether tools are supplied by the master, the length of time the for which the person was employed, the method of payment including the withholding for taxes and the payment of payroll taxes.

If there the relationship does not fit into the traditional employment relationship, the work is specially commissioned by what is considered an independent contractor. In that situation, one must see if the commissioned work fits into any of the nine enumerated categories and there must be a writing indicating the parties intent the work is a work for hire.

Article Source: http://www.freetextarticles.com

Robert G. Klein, Esq. is a Los Angeles business litigation attorney whose emphasis is in trademark infringement litigation, unfair competition lawsuits, trade secret litigation, and business disputes. Visit our web site www.kleinligitation.com or call him at 213.996.8508

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