Despite a tendency of American law to invoke liberal individualism to justify economic structures that frustrate the aspirations of real-life individuals, n113 it is somewhat surprising to encounter the individualistic Romantic conception of "authorship" deployed to support a regime that disassociates creative workers from a legal interest in their creations: the "work-for-hire" doctrine of American copyright law. n114 Where the doctrine applies, the firm or individual who paid to have a work created, rather than the person who created it, is regarded as the "author" for purposes of copyright ownership. n115
Previous sections of this Article traced how the legal objectification
of works of "authorship" contributed to the alienation
of creative workers from the products of their labor. When a work
is deemed to have been made "for hire," that alienation
is formally and legally complete: the "author" of the
"work" is the person on whose behalf the "work"
was made, not the individual who created it. In this legal configuration,
[*486] the employer's rights do not derive from the employee by
an implied grant or assignment. Rather, those rights are the direct
result of the employer's status. n116 Ironically,
the employers' claims are rationalized in terms of the Romantic
conception of "authorship" with its concomitant values
of "originality" and "inspiration."
The identification of an employer as "author" is not
a particularly venerable idea in Anglo-American copyright. Not
so long ago, the Romantic conception of "authorship"
appeared to cut against the recognition of a work-for-hire doctrine.
This was true at least as late as 1883, when the judges of the
English Court of Queen's Bench roundly rejected the notion in
Nottage v. Jackson. n117 The plaintiffs were
proprietors of a large photographic studio, and the pictures at
issue (of a visiting Australian cricket team) had been taken by
the studio's photographic artists n118 at
the instigation of a managerial employee. The court rejected the
plaintiffs' claim because they were not the "authors"
of the pictures. Justice Brett, the Master of the Rolls, expressed
his views somewhat dyspeptically:
[N]ow we have "the author" of a photograph. I should
like to know whether the person who drew this Act of Parliament
was clear in his mind as to who can be the "author"
of a photograph. . . . [The plaintiffs] think that they are the
authors of the photograph because the photograph is made and formed
by the work of their mere servants. . . . They may live 200 miles
off. Can they be called the authors of a photograph of which they
know nothing? It is done by their servants. They may go to the
shop once a week; and when they are there they may superintend
the operations, though I suppose they very seldom do. . . . Take
this very case. It is not pretended that these gentlemen were
at the Oval; they were either in London or fifty miles perhaps
the other side of London. . . . I confess I cannot be very clear
about it, all I can do is see who is the nearest person -- the
nearest like the author of a painting or the author of a drawing.
Certainly it is not the man who simply gives the idea of a picture,
because the proprietor may say, "Go and draw that lady with
a dog at her feet, and in one hand holding a flower." He
may have the idea, but still he is not there. He may be 100 miles
from the place, and he may have given the instructions by letter.
. . . n119
[*487] Lord Justice Cotton stated that "'author' involves
originating, making, producing, as the inventive or master mind,
the thing, which is to be protected. . . . [Here the plaintiffs]
did not give the direction or make the suggestion; but even that,
in my opinion, would not do." n120 In
the reference to the "master mind," this passage contains
the germ of a rationale for treating the employer as "author."
Yet Justice Cotton seems to have been unconscious of the implications
of his language. Like Justice Brett, he was committed to an individualistic,
essentially Romantic vision of "authorship" that appeared
to exclude such a possibility. American law, however, was about
to put a reverse-twist on individualistic "authorship,"
and the Romantic conception of originality would again be pressed
into the service of commerce.
Before 1909, American copyright statutes did not address the issue of employed authors, and courts dealt with it on an ad hoc basis. Some of the earliest decisions, although rewarding the contested rights to the employer, suggested that the issue should be viewed in contractual terms: "If a patron gives a commission to an artist, there appears to me a very strong implication that the work of art commissioned is to belong unreservedly and without limitation to the patron." n121 The Supreme Court in Bleistein held that because the three circus posters were "prepared by employees of the plaintiffs" there was sufficient evidence of the plaintiffs' ownership -- although not literally of their "authorship." n122
In contrast, see Yeungling v. Schile, 12 F. 97 (C.C.S.D.N.Y. 1882), in which an American firm's efforts to assert copyright in a "chromo" executed by a German artist were rebuffed, on the ground that neither the firm (which is not the "author") nor the artist (who is not a citizen) was entitled to protection.
In the deliberations leading up to the Copyright Act of 1909, which first included language stating that the employer was the "author" in the case of "works made for hire," there was no substantive discussion of this definitional innovation, n123 even on the part of the representatives of various authors' organizations who testified on the new legislation. The legislative treatment of employed "authors" in the 1909 Act might have [*488] been seen as a controversial innovation, coming as it did only a few years after the initial, tentative judicial suggestions of a doctrine of "works made for hire." In fact, this aspect of the legislation apparently seemed too insignificant to merit comment, let alone to occasion protest. That such a superficially radical departure did not attract more attention suggests that, at a deeper level, it was no departure at all, and that there existed some principle of harmony between it and the basic ideological structures of copyright law. Decisions applying the new doctrine would reveal how the "work-for-hire" doctrine could be rooted in a version -- albeit a curiously distorted one -- of the Romantic conception of "authorship."
Most early decisions interpreting and applying the work-for-hire doctrine were opaque in their reasoning, n124 but by the time Ann Ronnell forced the issue with Walt Disney and Irving Berlin, Inc., over rights to her arrangement of "Who's Afraid of the Big Bad Wolf," things were clear enough. In 1933, the free-lance musical arranger had been commissioned to help adapt the soundtrack version of "Who's Afraid of the Big Bad Wolf" as a popular song, which she did by "rearranging the musical themes in collaboration with an employee of Berlin, and arranging the existing lyrics and adding new ones of her own." n125 Twenty-eight years later, she registered a renewal copyright in the song she had helped produce, claiming to be a "joint author." For the Second Circuit Court of Appeals, however, Ronnell was a mere "employee for hire," and thus not entitled to renew; the renewal belonged instead to the assignee of her "employer":
In short, the "motivating factors" in the composition
of the new song . . . were Disney and Berlin. They controlled
the original song, they took the initiative in engaging Miss Ronnell
to adapt it, and they had the power to accept, reject, or modify
her work. n126
The characteristics of the employer-employee relationship that
Justices Brett and Cotton found irrelevant to "authorship"
in 1883 were determinative in 1972. Regardless of who produced
the original arrangement, it was the individual or firm who could
claim "authorship" to the [*489] work's initiating "motivating
factor" and inspiration. n127 In effect,
the visionary component of Romantic "authorship" was
disaggregated from the associated component of intellectual and
physical labor. The employer was cast as the visionary, and the
employee as a mere mechanic following orders. Perverse as this
variation on the conventional logic of "authorship"
may appear, it is not truly surprising in light of what had gone
before.
In 1989, the Supreme Court confirmed the Romantic underpinnings of the American "work-for-hire doctrine," as it is specified in new provisions of the 1976 Copyright Act designed to limit the circumstances under which an independent contractor or commissioned artist (like Ann Ronnell) would be denied "authorship" of her own works. Indeed, the definition of a work made for hire in section 101 of the Act limited the circumstances when the productions of "freelancers" could be considered works made for hire; specifically, when an explicit agreement to this effect and the work in question fell into one of nine designated statutory categories. n128
Despite this statutory language, however, several courts thereafter held under some circumstances a commissioned work could be regarded as a "work made for hire" although it did not satisfy the criteria just outlined, as long as it could be characterized as "a work prepared by an employee within the scope of her or her employment"; n129 this characterization, in turn, would be appropriate when the commissioning party had enjoyed "control" over the creation of the work. n130
The Supreme Court's approach to this dilemma in Community for Creative Non-Violence v. Reid n131 was, at best, semi-Solomonic. The [*490] unanimous Court concluded that ordinarily the terms of the statute should govern and only specific categories of commissioned works should be considered works for hire. n132 But an exception to this generalization was applicable when the commissioned artist or independent contractor could be considered the agent of the commissioning party. n133 The artist in this case is the employee, and the commissioning party the employer and "author" of the work -- regardless of the specific character of the work. n134
A central question in agency doctrine is whether a hired individual is the servant of the hiring party for a particular function or activity. n135 According to the Court's formula, the crucial inquiry is "the hiring party's right to control the manner and means by which the product is accomplished." n136 In Reid, the Supreme Court identified circumstances supporting the conclusion that the commissioned artist was the "author" of his own sculpture. n137 The outcome should not obscure the fact that the standard employed was one which can, and often will, deprive creative workers of the "authorship" designation. But it should come as no surprise that the particular version of the "authorship" construct emphasized in the "work-for-hire" cases may, in practice, be inimical to the concrete pecuniary and moral interests of writers, photographers, sculptors, and other flesh-and-blood creative workers. In Reid and the cases leading up to it, certain attributes of Romantic "authorship" are emphasized while others are marginalized. If the essence of the Romantic account of "authorship" was to be found in its emphasis on the inspired individual, the profoundly anti-individualistic work-for-hire cases focus [*491] exclusively on inspiration itself. The origins of the "authorship" construct may lie in the tradition of "possessive individualism," but in this version, it serves merely to rationalize possession.
NOTES
n113 Perhaps the most notable example
is the notorious Supreme Court decision in Lochner v. New York,
198 U.S. 45 (1905), which struck down state wage and hour laws
with the observation that "[t]here is no reasonable ground
for interfering with the liberty of persons or the right of free
contract, by determining the hours of labor, in the occupation
of a baker. . . ."
n114 The Supreme Court recently considered the doctrine in Community for Creative Non-Violence v. Reid, 490 U.S. 730 (1989).
n115 17 U.S.C. @ 201(b) (1988).
n116 Id.
n119 Id. at 630-32. In a similar vein, Lord Justice Bowen stated:
Id. at 632.
n121 Dielman v. White, 102 F. 892, 894 (C.C.D. Mass. 1900).
n122 One may speculate that the wariness of the Supreme Court's approach to the issues of "authorship" in Bleistein, and its complimentary emphasis on the characteristics of the "works" as such, may have been influenced by the implicit ambiguity as to the legal "author's" identity.
n123 See Varmer, Works Made for Hire and on Commission (Study No. 13), in COPYRIGHT LAW REVISION, STUDIES PREPARED FOR THE SENATE JUDICIARY SUBCOMM. ON PATENTS, TRADEMARKS AND COPYRIGHTS, 86th Cong., 2d Sess. 123, 128 (Comm. Print 1960).
n124 See National Cloak & Suit Co. v. Kaufman, 189 F. 215 (C.C.M.D. Pa. 1911).
n125 Picture Music, Inc. v. Bourne, Inc., 457 F.2d 1213, 1214 (2d. Cir.), cert. denied, 409 U.S. 997 (1972).
n127 The employer's contribution of capital is also a factor in the analysis of many "work-for-hire" cases. The typical case, however, tends to deemphasize the employer's economic contributions, and emphasize the "creative" ones. The capital investment is not in any way essential to the determination of whether a particular employer should be considered an "author." The facts of Picture Music suggest that Miss Ronnell received only a promise of future royalties in connection with her work for Disney and Berlin.
n128 17 U.S.C. @ 101 (1988) (definition of "work made for hire). The categories are "a contribution to a collective work, . . . a part of a motion picture or other audiovisual work, . . . a translation, . . . a supplementary work, . . . a compilation, . . . an instructional text, . . . answer material for a test, . . . [and] an atlas." Id. The legislative history of this provision is exhaustively reviewed in Hardy, Copyright Law's Concept of Employment -- What Congress Really Intended, 35 J. COPYRIGHT SOC'Y U.S.A. 210 (1988).
n130 These decisions included Aldon Accessories, Ltd. v. Speigel, Inc., 738 F.2d 548 (2d Cir.) (commissioned work is work of "employee" when commissioning party exercises "actual" supervision and control), cert. denied, 469 U.S. 982 (1984); Easter Seal Soc'y v. Playboy Enters., 815 F.2d 323 (5th Cir. 1987) (potential supervision and control by commissioning party sufficient), cert. denied, 485 U.S. 981 (1988)
n132 Id. at 750.
n133 Id. at 751.
n134 The Court drew heavily on the analysis of the case provided below by the United States Court of Appeals for the District of Columbia Circuit. See Community for Creative Non-Violence v. Reid, 846 F.2d 1485 (D.C. Cir. 1988).
n135 See RESTATEMENT OF AGENCY @@ 2, 220-227 (1933).
n137 Id. at 751-52. Although the sculptor in Reid was significantly influenced in the execution of the commission, the Court found that he was not an agent because "all the other circumstances weigh[ed] heavily against finding an employment relationship." Id. at 752. Previously, the opinion noted:
Id. at 751-52 (citations omitted). But if the ultimate goal
of the inquiry is to determine "the hiring party's right
to control the manner and means by the product is accomplished,"
however, it is difficult to see how it can also be true that "the
extent of control the hiring party exercises over the details
of the product is not dispositive." Id. at 752.