Another copyright question: commissioned work

[Otto]

Inspired by a Pit thread (which I won’t bother linking because it’s not strictly relevant), I’m wondering who owns the copyright on a commissioned work? I guess I just assumed that, absent some specific provision of the commission addressing copyright it would belong to the person commissioning it since the creatir wouldn’t have created it otherwise. What’s the law on the subject?

[Exapno_Mapcase]

I’m not sure I understand what you mean by commissioned work, or else you may not be aware that it already has a specific meaning in much of the publishing world different from what you suggest.

The standard meaning of commissioned is a work that an editor requests from an author, either fiction or non-fiction. If Esquire commissions Hunter Thompson to cover the California recall election or Asimov’s wants a tribute story from Connie Willis about Robert Heinlein, these would be considered commissioned works. In most magazine publications this has no effect on the copyright: the author retains copyright just as if he or she had the original idea and sent it in for approval. This would be true in the book world as well.

I believe that what you are thinking of is “work-for-hire”. Many newspapers these days, and most corporations, solicit “work-for-hire”, meaning that they pay (normally - there are exceptions to everything) a one-time flat fee for all rights to use the work forever. That the “commissioner” would retain copyright would have to be spelled out in the contract because current Copyright Law says that otherwise all work is copyrighted by the author from the moment it is written.

Offly enough, many things that you think would be “work-for-hire” are not, like Star Trek novels and other media tie-ins. These are covered under standard book contracts just like any other books.

I use the term “work-for-hire” specifically and carefully, because it has those connotations in law and has been the subject of any number of legal battles.

[sunfish]

Title 17, Sec. 101 of the United States Code gives this definition:

A "work made for hire’’ is–

(1) a work prepared by an employee within the scope of his or her employment; or

(2) a work specially ordered or commissioned for use as a contribution to a collective work , as a part of a motion picture or other audiovisual work, as a translation, as a supplementary work, as a compilation, as an instructional text, as a test, as answer material for a test, or as an atlas, if the parties expressly agree in a written instrument signed by them that the work shall be considered a work made for hire. For the purpose of the foregoing sentence, a "supplementary work'' is a work prepared for publication as a secondary adjunct to a work by another author for the purpose of introducing, concluding, illustrating, explaining, revising, commenting upon, or assisting in the use of the other work, such as forewords, afterwords, pictorial illustrations, maps, charts, tables, editorial notes, musical arrangements, answer material for tests, bibliographies, appendixes, and indexes, and an "instructional text'' is a literary, pictorial, or graphic work prepared for publication and with the purpose of use in systematic instructional activities.

In determining whether any work is eligible to be considered a work made for hire under paragraph (2), neither the amendment contained in section 1011(d) of the Intellectual Property and Communications Omnibus Reform Act of 1999, as enacted by section 1000(a)(9) of Public Law 106-113, nor the deletion of the words added by that amendment--

(A) shall be considered or otherwise given any legal significance, or

(B) shall be interpreted to indicate congressional approval or disapproval of, or acquiescence in, any judicial determination,

by the courts or the Copyright Office. Paragraph (2) shall be interpreted as if both section 2(a)(1) of the Work Made For Hire and Copyright Corrections Act of 2000 and section 1011(d) of the Intellectual Property and Communications Omnibus Reform Act of 1999, as enacted by section 1000(a)(9) of Public Law 106-113, were never enacted, and without regard to any inaction or awareness by the Congress at any time of any judicial determinations.

17 U.S.C. Sec. 201(b) goes on to add:

( b) Works Made for Hire .–In the case of a work made for hire, the employer or other person for whom the work was prepared is considered the author for purposes of this title, and, unless the parties have expressly agreed otherwise in a written instrument signed by them, owns all of the rights comprised in the copyright.

So that’s part of the relevant law, but whether or not you are dealing with a work for hire (“commissioned work” in a general sense) depends on the wording of the contract and possible interpretations thereof, if ownership for some reason is not clearly spelled out. IANAL, etc.

[Otto]

Sorry for any confusion. What led to the question was a mention in a Pit thread suggesting that it is a violation of copyright for one to take, say, a student’s yearbook photo or a shot from Sears portriat studio into a Kinko’s and copy it, because the photographer owns the copyright. So when I say “commissioned work” I mean Patron of the Arts A goes to Artist B and says “paint my portrait” or photograph my family" or “sculpt me something pretty.” Artist B does so, turns over the finished product to PoA A and is paid. Absent something in the contract between PoA A and Artist B, does the copyright reside with A or B? I think 17 U.S.C. Sec. 201(b) answers my question; it would reside with PoA A.

[Exapno_Mapcase]

No, I don’t think so. The important word in the law that sunfish cited is employee. There must be a direct employer/employee relationship for the work made for hire law to take effect. Believe me, this is not idle word play - this has been the basis for many a court case.

In your example, the Patron of the Arts is specifically not the employer of the Artist and so 17 U. S. C. Sec. 201(b) does not apply. The general Copyright law does.

[bojon]

Bob kolody v coca-cola pretty much sums it up.