490 U.S. 730, 109 S.Ct. 2166
COMMUNITY FOR CREATIVE NON-VIOLENCE, et al., Petitioners,
v.
James Earl REID.
No. 88-293.
Supreme Court of the United States
Argued March 29, 1989.
Decided June 5, 1989.
Syllabus [FN*]
FN* The syllabus constitutes no part of the opinion of the Court but has been prepared
by the Reporter of Decisions for the convenience of the reader. See United States v.
Detroit Lumber Co., 200 U.S. 321, 337, 26 S.Ct. 282, 237, 50 L.Ed. 499.
In the fall of 1985, petitioners--the Community for Creative Non-Violence (CCNV), a
Washington, D.C., organization dedicated to eliminating homelessness, and one of its
trustees--entered into an oral agreement with respondent Reid, a sculptor, to produce a
statue dramatizing the plight of the homeless for display at a 1985 Christmas pageant in
Washington. While Reid worked on the statue in his Baltimore, Md., studio, CCNV members
visited him on a number of occasions to check on his progress and to coordinate CCNV's
construction of the sculpture's base in accordance with the parties' agreement. Reid
accepted most of CCNV's suggestions and directions as to the sculpture's configuration and
appearance. After the completed work was delivered to Washington, CCNV paid Reid the final
installment of the agreed- upon price, joined the sculpture to its base, and displayed it.
The parties, who had never discussed copyright in the sculpture, then filed competing
copyright registration certificates. The District Court ruled for CCNV in its subsequent
suit seeking, inter alia, a determination of copyright ownership, holding that the statue
was a "work made for hire" as defined in the Copyright Act of 1976, 17 U.S.C. s
101, and was therefore owned exclusively by CCNV under s 201(b), which vests copyright
ownership of works for hire in the employer or other person for whom the work is prepared,
unless there is a written agreement to the contrary. The Court of Appeals reversed,
holding that the sculpture was not a "work made for hire" under the first
subsection of the s 101 definition (hereinafter s 101(1)), since it was not "prepared
by an employee within the scope of his or her employment" in light of Reid's status
as an independent contractor under agency law. The court also ruled that the statue did
not satisfy the second subsection of the s 101 definition (hereinafter s 101(2)), since
sculpture is not one of the nine categories of "specially ordered or
commissioned" works enumerated therein, and the parties had not agreed in writing
that the sculpture would be a work for hire. However, the court remanded for a
determination whether the statue was jointly authored by CCNV and Reid, such that they
were co-owners of the copyright under s 201(a).
Held:
1. To determine whether a work is a "work made for hire" within the s 101
definition, a court should first apply general common law of agency principles to
ascertain whether the work was prepared by an employee or an independent contractor, and,
depending upon the outcome, should then apply either s 101(1) or s 101(2). Although the
Act nowhere defines "employee," "employment," or related terms, it
must be inferred that Congress meant them in their settled, common-law sense, since
nothing in the text of the work for hire provisions indicates that those terms are used to
describe anything other than the conventional relation of employer and employee. On the
contrary, Congress' intent to incorporate agency law definitions is suggested by s
101(1)'s use of the term "scope of employment," a widely used agency law term of
art. Moreover, the general common law of agency must be relied on, rather than the law of
any particular State, since the Act is expressly intended to create a federal law of
uniform, nationwide application by broadly preempting state statutory and common-law
copyright regulation. Petitioners' argument that a work is "prepared by an employee
within the scope of his or her employment" whenever the hiring party retains the
right to control, or actually controls, the work is inconsistent with the language and
legislative history of the work for hire provisions, and would distort the provisions'
structure, which views works by employees and commissioned works by independent
contractors as mutually exclusive entities. Pp. 2171-2178.
2. The sculpture in question is not a "work made for hire" within the meaning of
s 101. Reid was an independent contractor rather than a s 101(1) "employee"
since, although CCNV members directed enough of the work to ensure that the statue met
their specifications, all other relevant circumstances weigh heavily against finding an
employment relationship. Reid engages in a skilled occupation; supplied his own tools;
worked in Baltimore without daily supervision from Washington; was retained for a
relatively short period of time; had absolute freedom to decide when and how long to work
in order to meet his deadline; and had total discretion in hiring and paying assistants.
Moreover, CCNV had no right to assign additional projects to Reid; paid him in a manner in
which independent contractors are often compensated; did not engage regularly in the
business of creating sculpture or, in fact, in any business; and did not pay payroll or
Social Security taxes, provide any employee benefits, or contribute to unemployment
insurance or workers' compensation funds. Furthermore, as petitioners concede, the work in
question does not satisfy the terms of s 101(2). Pp. 2178-2180.
3. However, CCNV nevertheless may be a joint author of the sculpture and, thus, a co-owner
of the copyright under s 201(a), if, on remand, the District Court determines that the
parties prepared the work with the intention that their contributions be merged into
inseparable or interdependent parts of a unitary whole. P. 2180.
270 U.S.App.D.C. 26, 846 F.2d 1485 (1988), affirmed.
Justice MARSHALL delivered the opinion of the Court.
In this case, an artist and the organization that hired him to produce a sculpture contest
the ownership of the copyright in that work. To resolve this dispute, we must construe the
"work made for hire" provisions of the Copyright Act of 1976 (Act or 1976 Act),
17 U.S.C. ss 101 and 201(b), and in particular, the provision in s 101, which defines as a
"work made for hire" a "work prepared by an employee within the scope of
his or her employment" (hereinafter s 101(1)).
I
Petitioners are the Community for Creative Non-Violence (CCNV), a nonprofit
unincorporated association dedicated to eliminating homelessness in America, and Mitch
Snyder, a member and trustee of CCNV. In the fall of 1985, CCNV decided to participate in
the annual Christmastime Pageant of Peace in Washington, D.C., by sponsoring a display to
dramatize the plight of the homeless. As the District Court recounted: "Snyder and
fellow CCNV members conceived the idea for the nature of the display: a sculpture of a
modern Nativity scene in which, in lieu of the traditional Holy Family, the two adult
figures and the infant would appear as contemporary homeless people huddled on a
streetside steam grate. The family was to be black (most of the homeless in Washington
being black); the figures were to be life-sized, and the steam grate would be positioned
atop a platform 'pedestal,' or base, within which special-effects equipment would be
enclosed to emit simulated 'steam' through the grid to swirl about the figures. They also
settled upon a title for the work--'Third World America'--and a legend for the pedestal:
'and still there is no room at the inn.' " 652 F.Supp. 1453, 1454 (DC 1987).
Snyder made inquiries to locate an artist to produce the sculpture. He was referred to
respondent James Earl Reid, a Baltimore, Maryland, sculptor. In the course of two
telephone calls, Reid agreed to sculpt the three human figures. CCNV agreed to make the
steam grate and pedestal for the statue. Reid proposed that the work be cast in bronze, at
a total cost of approximately $100,000 and taking six to eight months to complete. Snyder
rejected that proposal because CCNV did not have sufficient funds, and because the statue
had to be completed by December 12 to be included in the pageant. Reid then suggested, and
Snyder agreed, that the sculpture would be made of a material known as "Design Cast
62," a synthetic substance that could meet CCNV's monetary and time constraints,
could be tinted to resemble bronze, and could withstand the elements. The parties agreed
that the project would cost no more than $15,000, not including Reid's services, which he
offered to donate. The parties did not sign a written agreement. Neither party mentioned
copyright.
After Reid received an advance of $3,000, he made several sketches of figures in various
poses. At Snyder's request, Reid sent CCNV a sketch of a proposed sculpture showing the
family in a creche like setting: the mother seated, cradling a baby in her lap; the father
standing behind her, bending over her shoulder to touch the baby's foot. Reid testified
that Snyder asked for the sketch to use in raising funds for the sculpture. Snyder
testified that it was also for his approval. Reid sought a black family to serve as a
model for the sculpture. Upon Snyder's suggestion, Reid visited a family living at CCNV's
Washington shelter but decided that only their newly born child was a suitable model.
While Reid was in Washington, Snyder took him to see homeless people living on the
streets. Snyder pointed out that they tended to recline on steam grates, rather than sit
or stand, in order to warm their bodies. From that time on, Reid's sketches contained only
reclining figures.
Throughout November and the first two weeks of December 1985, Reid worked exclusively on
the statue, assisted at various times by a dozen different people who were paid with funds
provided in installments by CCNV. On a number of occasions, CCNV members visited Reid to
check on his progress and to coordinate CCNV's construction of the base. CCNV rejected
Reid's proposal to use suitcases or shopping bags to hold the family's personal
belongings, insisting instead on a shopping cart. Reid and CCNV members did not discuss
copyright ownership on any of these visits.
On December 24, 1985, 12 days after the agreed-upon date, Reid delivered the completed
statue to Washington. There it was joined to the steam grate and pedestal prepared by CCNV
and placed on display near the site of the pageant. Snyder paid Reid the final installment
of the $15,000. The statue remained on display for a month. In late January 1986, CCNV
members returned it to Reid's studio in Baltimore for minor repairs. Several weeks later,
Snyder began making plans to take the statue on a tour of several cities to raise money
for the homeless. Reid objected, contending that the Design Cast 62 material was not
strong enough to withstand the ambitious itinerary. He urged CCNV to cast the statue in
bronze at a cost of $35,000, or to create a master mold at a cost of $5,000. Snyder
declined to spend more of CCNV's money on the project.
In March 1986, Snyder asked Reid to return the sculpture. Reid refused. He then filed a
certificate of copyright registration for "Third World America" in his name and
announced plans to take the sculpture on a more modest tour than the one CCNV had
proposed. Snyder, acting in his capacity as CCNV's trustee, immediately filed a competing
certificate of copyright registration.
Snyder and CCNV then commenced this action against Reid and his photographer, Ronald
Purtee, [FN1] seeking return of
the sculpture and a determination of copyright ownership. The District Court granted a
preliminary injunction, ordering the sculpture's return. After a 2-day bench trial, the
District Court declared that "Third World America" was a "work made for
hire" under s 101 of the Copyright Act and that Snyder, as trustee for CCNV, was the
exclusive owner of the copyright in the sculpture. 652 F.Supp., at 1457. The court
reasoned that Reid had been an "employee" of CCNV within the meaning of s 101(1)
because CCNV was the motivating force in the statue's production. Snyder and other CCNV
members, the court explained, "conceived the idea of a contemporary Nativity scene to
contrast with the national celebration of the season," and "directed enough of
[Reid's] effort to assure that, in the end, he had produced what they, not he,
wanted." Id., at 1456.
The Court of Appeals for the District of Columbia Circuit reversed and remanded, holding
that Reid owned the copyright because "Third World America" was not a work for
hire. 270 U.S.App.D.C. 26, 35, 846 F.2d 1485, 1494 (1988). Adopting what it termed the
"literal interpretation" of the Act as articulated by the Fifth Circuit in
Easter Seal Society for Crippled Children & Adults of Louisiana, Inc. v. Playboy
Enterprises, 815 F.2d 323, 329 (1987), cert. denied, 485 U.S. 981, 108 S.Ct. 1280, 99
L.Ed.2d 491 (1988), the court read s 101 as creating "a simple dichotomy in fact
between employees and independent contractors." 270 U.S.App.D.C., at 33, 846 F.2d, at
1492. Because, under agency law, Reid was an independent contractor, the court concluded
that the work was not "prepared by an employee" under s 101(1). Id., at 35, 846
F.2d, at 1494. Nor was the sculpture a "work made for hire" under the second
subsection of s 101 (hereinafter s 101(2)): sculpture is not one of the nine categories of
works enumerated in that subsection, and the parties had not agreed in writing that the
sculpture would be a work for hire. Ibid. The court suggested that the sculpture
nevertheless may have been jointly authored by CCNV and Reid, id., at 36, 846 F.2d, at
1495, and remanded for a determination whether the sculpture is indeed a joint work under
the Act, id., at 39-40, 846 F.2d, at 1498-1499.
We granted certiorari to resolve a conflict among the Courts of Appeals over the proper
construction of the "work made for hire" provisions of the Act. [FN2] 488 U.S. 940, 109 S.Ct.
362, 102 L.Ed.2d 352 (1988). We now affirm.
II
A
The Copyright Act of 1976 provides that copyright ownership "vests initially in
the author or authors of the work." 17 U.S.C. s 201(a). As a general rule, the author
is the party who actually creates the work, that is, the person who translates an idea
into a fixed, tangible expression entitled to copyright protection. s 102. The Act carves
out an important exception, however, for "works made for hire." [FN3] If the work is for hire,
"the employer or other person for whom the work was prepared is considered the
author" and owns the copyright, unless there is a written agreement to the contrary.
s 201(b). Classifying a work as "made for hire" determines not only the initial
ownership of its copyright, but also the copyright's duration, s 302(c), and the owners'
renewal rights, s 304(a), termination rights, s 203(a), and right to import certain goods
bearing the copyright, s 601(b)(1). See 1 M. Nimmer & D. Nimmer, Nimmer on Copyright s
5.03[A], pp. 5- 10 (1988). The contours of the work for hire doctrine therefore carry
profound significance for freelance creators--including artists, writers, photographers,
designers, composers, and computer programmers--and for the publishing, advertising,
music, and other industries which commission their works. [FN4]
Section 101 of the 1976 Act provides that a work is "for hire" under two sets of
circumstances: "(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." [FN5]
Petitioners do not claim that the statue satisfies the terms of s 101(2). Quite clearly,
it does not. Sculpture does not fit within any of the nine categories of "specially
ordered or commissioned" works enumerated in that subsection, and no written
agreement between the parties establishes "Third World America" as a work for
hire.
The dispositive inquiry in this case therefore is whether "Third World America"
is "a work prepared by an employee within the scope of his or her employment"
under s 101(1). The Act does not define these terms. In the absence of such guidance, four
interpretations have emerged. The first holds that a work is prepared by an employee
whenever the hiring party [FN6]
retains the right to control the product. See Peregrine v. Lauren Corp., 601 F.Supp. 828,
829 (Colo.1985); Clarkstown v. Reeder, 566 F.Supp. 137, 142 (SDNY 1983). Petitioners take
this view. Brief for Petitioners 15; Tr. of Oral Arg. 12. A second, and closely related,
view is that a work is prepared by an employee under s 101(1) when the hiring party has
actually wielded control with respect to the creation of a particular work. This approach
was formulated by the Court of Appeals for the Second Circuit, Aldon Accessories Ltd. v.
Spiegel, Inc., 738 F.2d 548, cert. denied, 469 U.S. 982, 105 S.Ct. 387, 83 L.Ed.2d 321
(1984), and adopted by the Fourth Circuit, Brunswick Beacon, Inc. v. Schock-Hopchas
Publishing Co., 810 F.2d 410 (1987), the Seventh Circuit, Evans Newton, Inc. v. Chicago
Systems Software, 793 F.2d 889, cert. denied, 479 U.S. 949, 107 S.Ct. 434, 93 L.Ed.2d 383
(1986), and, at times, by petitioners, Brief for Petitioners 17. A third view is that the
term "employee" within s 101(1) carries its common- law agency law meaning. This
view was endorsed by the Fifth Circuit in Easter Seal Society for Crippled Children &
Adults of Louisiana, Inc. v. Playboy Enterprises, 815 F.2d 323 (1987), and by the Court of
Appeals below. Finally, respondent and numerous amici curiae contend that the term
"employee" only refers to "formal, salaried" employees. See, e.g.,
Brief for Respondent 23-24; Brief for Register of Copyrights as Amicus Curiae 7. The Court
of Appeals for the Ninth Circuit recently adopted this view. See Dumas v. Gommerman, 865
F.2d 1093 (1989).
The starting point for our interpretation of a statute is always its language. Consumer
Product Safety Comm'n v. GTE Sylvania, Inc., 447 U.S. 102, 108, 100 S.Ct. 2051, 2056, 64
L.Ed.2d 766 (1980). The Act nowhere defines the terms "employee" or "scope
of employment." It is, however, well established that "[w]here Congress uses
terms that have accumulated settled meaning under ... the common law, a court must infer,
unless the statute otherwise dictates, that Congress means to incorporate the established
meaning of these terms." NLRB v. Amax Coal Co., 453 U.S. 322, 329, 101 S.Ct. 2789,
2794, 69 L.Ed.2d 672 (1981); see also Perrin v. United States, 444 U.S. 37, 42, 100 S.Ct.
311, 314, 62 L.Ed.2d 199 (1979). In the past, when Congress has used the term
"employee" without defining it, we have concluded that Congress intended to
describe the conventional master-servant relationship as understood by common-law agency
doctrine. See, e.g., Kelley v. Southern Pacific Co., 419 U.S. 318, 322-323, 95 S.Ct. 472,
475-476, 42 L.Ed.2d 498 (1974); Baker v. Texas & Pacific R. Co., 359 U.S. 227, 228, 79
S.Ct. 664, 665, 3 L.Ed.2d 756 (1959) (per curiam ); Robinson v. Baltimore & Ohio R.
Co., 237 U.S. 84, 94, 35 S.Ct. 491, 494, 59 L.Ed. 849 (1915). Nothing in the text of the
work for hire provisions indicates that Congress used the words "employee" and
"employment" to describe anything other than " 'the conventional relation
of employer and employe.' " Kelley, supra, 419 U.S., at 323, 95 S.Ct., at 476,
quoting Robinson, supra, 237 U.S., at 94, 35 S.Ct., at 494; cf. NLRB v. Hearst
Publications, Inc., 322 U.S. 111, 124- 132, 64 S.Ct. 851, 857-861, 88 L.Ed. 1170 (1944)
(rejecting agency law conception of employee for purposes of the National Labor Relations
Act where structure and context of statute indicated broader definition). On the contrary,
Congress' intent to incorporate the agency law definition is suggested by s 101(1)'s use
of the term, "scope of employment," a widely used term of art in agency law. See
Restatement (Second) of Agency s 228 (1958) (hereinafter Restatement).
In past cases of statutory interpretation, when we have concluded that Congress intended
terms such as "employee," "employer," and "scope of
employment" to be understood in light of agency law, we have relied on the general
common law of agency, rather than on the law of any particular State, to give meaning to
these terms. See, e.g., Kelley, 419 U.S., at 323-324, and n. 5, 95 S.Ct., at 475-476, and
n. 5; id., at 332, 95 S.Ct., at 480 (Stewart, J., concurring in judgment); Ward v.
Atlantic Coast Line R. Co., 362 U.S. 396, 400, 80 S.Ct. 789, 792, 4 L.Ed.2d 820 (1960);
Baker, supra, 359 U.S., at 228, 79 S.Ct., at 665. This practice reflects the fact that
"federal statutes are generally intended to have uniform nationwide
application." Mississippi Band of Choctaw Indians v. Holyfield, 490 U.S. 30, 43, 109
S.Ct. 1597, 1605, 104 L.Ed.2d 29 (1989). Establishment of a federal rule of agency, rather
than reliance on state agency law, is particularly appropriate here given the Act's
express objective of creating national, uniform copyright law by broadly pre-empting state
statutory and common-law copyright regulation. See 17 U.S.C. s 301(a). We thus agree with
the Court of Appeals that the term "employee" should be understood in light of
the general common law of agency.
In contrast, neither test proposed by petitioners is consistent with the text of the Act.
The exclusive focus of the right to control the product test on the relationship between
the hiring party and the product clashes with the language of s 101(1), which focuses on
the relationship between the hired and hiring parties. The right to control the product
test also would distort the meaning of the ensuing subsection, s 101(2). Section 101
plainly creates two distinct ways in which a work can be deemed for hire: one for works
prepared by employees, the other for those specially ordered or commissioned works which
fall within one of the nine enumerated categories and are the subject of a written
agreement. The right to control the product test ignores this dichotomy by transforming
into a work for hire under s 101(1) any "specially ordered or commissioned" work
that is subject to the supervision and control of the hiring party. Because a party who
hires a "specially ordered or commissioned" work by definition has a right to
specify the characteristics of the product desired, at the time the commission is
accepted, and frequently until it is completed, the right to control the product test
would mean that many works that could satisfy s 101(2) would already have been deemed
works for hire under s 101(1). Petitioners' interpretation is particularly hard to square
with s 101(2)'s enumeration of the nine specific categories of specially ordered or
commissioned works eligible to be works for hire, e.g., "a contribution to a
collective work," "a part of a motion picture," and "answer material
for a test." The unifying feature of these works is that they are usually prepared at
the instance, direction, and risk of a publisher or producer.
[FN7] By their very nature, therefore, these types of works
would be works by an employee under petitioners' right to control the product test.
The actual control test, articulated by the Second Circuit in Aldon Accessories, fares
only marginally better when measured against the language and structure of s 101. Under
this test, independent contractors who are so controlled and supervised in the creation of
a particular work are deemed "employees" under s 101(1). Thus work for hire
status under s 101(1) depends on a hiring party's actual control of, rather than right to
control, the product. Aldon Accessories, 738 F.2d, at 552. Under the actual control test,
a work for hire could arise under s 101(2), but not under s 101(1), where a party
commissions, but does not actually control, a product which falls into one of the nine
enumerated categories. Nonetheless, we agree with the Court of Appeals for the Fifth
Circuit that "[t]here is simply no way to milk the 'actual control' test of Aldon
Accessories from the language of the statute." Easter Seal Society, 815 F.2d, at 334.
Section 101 clearly delineates between works prepared by an employee and commissioned
works. Sound though other distinctions might be as a matter of copyright policy, there is
no statutory support for an additional dichotomy between commissioned works that are
actually controlled and supervised by the hiring party and those that are not.
We therefore conclude that the language and structure of s 101 of the Act do not support
either the right to control the product or the actual control approaches. [FN8] The structure of s 101
indicates that a work for hire can arise through one of two mutually exclusive means, one
for employees and one for independent contractors, and ordinary canons of statutory
interpretation indicate that the classification of a particular hired party should be made
with reference to agency law.
This reading of the undefined statutory terms finds considerable support in the Act's
legislative history. Cf. Diamond v. Chakrabarty, 447 U.S. 303, 315, 100 S.Ct. 2204,
2210-11, 65 L.Ed.2d 144 (1980). The Act, which almost completely revised existing
copyright law, was the product of two decades of negotiation by representatives of
creators and copyright-using industries, supervised by the Copyright Office and, to a
lesser extent, by Congress. See Mills Music, Inc. v. Snyder, 469 U.S. 153, 159, 105 S.Ct.
638, 642-43, 83 L.Ed.2d 556 (1985); Litman, Copyright, Compromise, and Legislative
History, 72 Cornell L.Rev. 857, 862 (1987). Despite the lengthy history of negotiation and
compromise which ultimately produced the Act, two things remained constant. First,
interested parties and Congress at all times viewed works by employees and commissioned
works by independent contractors as separate entities. Second, in using the term
"employee," the parties and Congress meant to refer to a hired party in a
conventional employment relationship. These factors militate in favor of the reading we
have found appropriate.
In 1955, when Congress decided to overhaul copyright law, the existing work for hire
provision was s 62 of the 1909 Copyright Act, 17 U.S.C. s 26 (1976 ed.) (1909 Act). It
provided that "the word 'author' shall include an employer in the case of works made
for hire." [FN9] Because
the 1909 Act did not define "employer" or "works made for hire," the
task of shaping these terms fell to the courts. They concluded that the work for hire
doctrine codified in s 62 referred only to works made by employees in the regular course
of their employment. As for commissioned works, the courts generally presumed that the
commissioned party had impliedly agreed to convey the copyright, along with the work
itself, to the hiring party. See, e.g., Shapiro, Bernstein & Co. v. Jerry Vogel Music
Co., 221 F.2d 569, 570, rev'd, 223 F.2d 252 (CA2 1955); Yardley v. Houghton Mifflin Co.,
108 F.2d 28, 31 (CA2 1939), cert. denied, 309 U.S. 686, 60 S.Ct. 891, 84 L.Ed. 1029
(1940). [FN10]
In 1961, the Copyright Office's first legislative proposal retained the distinction
between works by employees and works by independent contractors. See Report of the
Register of Copyrights on the General Revision of the U.S. Copyright Law, 87th Cong., 1st
Sess., Copyright Law Revision 86-87 (H.R. Judiciary Comm. Print 1961). After numerous
meetings with representatives of the affected parties, the Copyright Office issued a
preliminary draft bill in 1963. Adopting the Register's recommendation, it defined
"work made for hire" as "a work prepared by an employee within the scope of
the duties of his employment, but not including a work made on special order or
commission." Preliminary Draft for Revised U.S. Copyright Law and Discussions and
Comments on the Draft, 88th Cong., 2d Sess., Copyright Law Revision, Part 3, p. 15, n. 11
(H. Judiciary Comm. Print 1964) (hereinafter Preliminary Draft).
In response to objections by book publishers that the preliminary draft bill limited the
work for hire doctrine to "employees," [FN11] the 1964 revision bill expanded the scope of the work
for hire classification to reach, for the first time, commissioned works. The bill's
language, proposed initially by representatives of the publishing industry, retained the
definition of work for hire insofar as it referred to "employees," but added a
separate clause covering commissioned works, without regard to the subject matter,
"if the parties so agree in writing." S. 3008, H.R. 11947, H.R. 12354, 88th
Cong., 2d Sess., s 54 (1964), reproduced in 1964 Revision Bill with Discussions and
Comments, 89th Cong., 1st Sess., Copyright Law Revision, pt. 5, p. 31 (H.R. Judiciary
Comm. Print 1965). Those representing authors objected that the added provision would
allow publishers to use their superior bargaining position to force authors to sign work
for hire agreements, thereby relinquishing all copyright rights as a condition of getting
their books published. See Supplementary Report, at 67.
In 1965, the competing interests reached a historic compromise, which was embodied in a
joint memorandum submitted to Congress and the Copyright Office,
[FN12] incorporated into the 1965 revision bill, and
ultimately enacted in the same form and nearly the same terms 11 years later, as s 101 of
the 1976 Act. The compromise retained as subsection (1) the language referring to "a
work prepared by an employee within the scope of his employment." However, in
exchange for concessions from publishers on provisions relating to the termination of
transfer rights, the authors consented to a second subsection which classified four
categories of commissioned works as works for hire if the parties expressly so agreed in
writing: works for use "as a contribution to a collective work, as a part of a motion
picture, as a translation, or as supplementary work." S. 1006, H.R. 4347, H.R. 5680,
H.R. 6835, 89th Cong., 1st Sess., s 101 (1965). The interested parties selected these
categories because they concluded that these commissioned works, although not prepared by
employees and thus not covered by the first subsection, nevertheless should be treated as
works for hire because they were ordinarily prepared "at the instance, direction, and
risk of a publisher or producer." Supplementary Report, at 67. The Supplementary
Report emphasized that only the "four special cases specifically mentioned"
could qualify as works made for hire; "[o]ther works made on special order or
commission would not come within the definition." Id., at 67-68.
In 1966, the House Committee on the Judiciary endorsed this compromise in the first
legislative Report on the revision bills. See H.R.Rep. No. 2237, 89th Cong., 2d Sess.,
114, 116 (1966). Retaining the distinction between works by employees and commissioned
works, the House Committee focused instead on "how to draw a statutory line between
those works written on special order or commission that should be considered as works made
for hire, and those that should not." Id., at 115. The House Committee added four
other enumerated categories of commissioned works that could be treated as works for hire:
compilations, instructional texts, tests, and atlases. Id., at 116. With the single
addition of "answer material for a test," the 1976 Act, as enacted, contained
the same definition of works made for hire as did the 1966 revision bill, and had the same
structure and nearly the same terms as the 1966 bill. [FN13] Indeed, much of the language of the 1976 House and
Senate Reports was borrowed from the Reports accompanying the earlier drafts. See, e.g.,
H.R.Rep. No. 94-1476, p. 121 (1976); S.Rep. No. 94-473, p. 105 (1975), U.S.Code Cong.
& Admin.News 1976, p. 5659.
Thus, the legislative history of the Act is significant for several reasons. First, the
enactment of the 1965 compromise with only minor modifications demonstrates that Congress
intended to provide two mutually exclusive ways for works to acquire work for hire status:
one for employees and the other for independent contractors. Second, the legislative
history underscores the clear import of the statutory language: only enumerated categories
of commissioned works may be accorded work for hire status. The hiring party's right to
control the product simply is not determinative. See Note, The Creative Commissioner:
Commissioned Works Under the Copyright Act of 1976, 62 N.Y.U.L.Rev. 373, 388 (1987).
Indeed, importing a test based on a hiring party's right to control, or actual control of,
a product would unravel the " 'carefully worked out compromise aimed at balancing
legitimate interests on both sides.' " H.R.Rep. No. 2237, supra, at 114, quoting
Supplemental Report, at 66. [FN14]
We do not find convincing petitioners' contrary interpretation of the history of the Act.
They contend that Congress, in enacting the Act, meant to incorporate a line of cases
decided under the 1909 Act holding that an employment relationship exists sufficient to
give the hiring party copyright ownership whenever that party has the right to control or
supervise the artist's work. See, e.g., Siegel v. National Periodical Publications, Inc.,
508 F.2d 909, 914 (CA2 1974); Picture Music, Inc. v. Bourne, Inc., 457 F.2d 1213, 1216
(CA2), cert. denied, 409 U.S. 997, 93 S.Ct. 320, 34 L.Ed.2d 262 (1972); Scherr v.
Universal Match Corp., 417 F.2d 497, 500 (CA2 1969), cert. denied, 397 U.S. 936, 90 S.Ct.
945, 25 L.Ed.2d 116 (1970); Brattleboro Publishing Co. v. Winmill Publishing Corp., 369
F.2d 565, 567- 568 (CA2 1966). In support of this position, petitioners note:
"Nowhere in the 1976 Act or in the Act's legislative history does Congress state that
it intended to jettison the control standard or otherwise to reject the pre-Act judicial
approach to identifying a work for hire employment relationship." Brief for
Petitioners 20, citing Aldon Accessories, 738 F.2d, at 552.
We are unpersuaded. Ordinarily, "Congress' silence is just that-- silence."
Alaska Airlines, Inc. v. Brock, 480 U.S. 678, 686, 107 S.Ct. 1476, 1481, 94 L.Ed.2d 661
(1987). Petitioners' reliance on legislative silence is particularly misplaced here
because the text and structure of s 101 counsel otherwise. See Bourjaily v. United States,
483 U.S. 171, 178, 107 S.Ct. 2775, 2780, 97 L.Ed.2d 144 (1987); Harrison v. PPG
Industries, Inc., 446 U.S. 578, 592, 100 S.Ct. 1889, 1897, 64 L.Ed.2d 525 (1980). [FN15] Furthermore, the structure
of the work for hire provisions was fully developed in 1965, and the text was agreed upon
in essentially final form by 1966. At that time, however, the courts had applied the work
for hire doctrine under the 1909 Act exclusively to traditional employees. Indeed, it was
not until after the 1965 compromise was forged and adopted by Congress [FN16] that a federal court for
the first time applied the work for hire doctrine to commissioned works. See, e.g.,
Brattleboro Publishing Co., supra, at 567-568. Congress certainly could not have
"jettisoned" a line of cases that had not yet been decided.
Finally, petitioners' construction of the work for hire provisions would impede Congress'
paramount goal in revising the 1976 Act of enhancing predictability and certainty of
copyright ownership. See H. R. Rep. No. 94- 1476, supra, at 129. In a "copyright
marketplace," the parties negotiate with an expectation that one of them will own the
copyright in the completed work. Dumas, 865 F.2d, at 1104-1105, n. 18. With that
expectation, the parties at the outset can settle on relevant contractual terms, such as
the price for the work and the ownership of reproduction rights.
To the extent that petitioners endorse an actual control test,
[FN17] CCNV's construction of the work for hire provisions
prevents such planning. Because that test turns on whether the hiring party has closely
monitored the production process, the parties would not know until late in the process, if
not until the work is completed, whether a work will ultimately fall within s 101(1).
Under petitioners' approach, therefore, parties would have to predict in advance whether
the hiring party will sufficiently control a given work to make it the author. "If
they guess incorrectly, their reliance on 'work for hire' or an assignment may give them a
copyright interest that they did not bargain for." Easter Seal Society, 815 F.2d, at
333; accord, Dumas, supra, at 1103. This understanding of the work for hire provisions
clearly thwarts Congress' goal of ensuring predictability through advance planning.
Moreover, petitioners' interpretation "leaves the door open for hiring parties, who
have failed to get a full assignment of copyright rights from independent contractors
falling outside the subdivision (2) guidelines, to unilaterally obtain work-made-for-hire
rights years after the work has been completed as long as they directed or supervised the
work, a standard that is hard not to meet when one is a hiring party." Hamilton,
Commissioned Works as Works Made for Hire Under the 1976 Copyright Act: Misinterpretation
and Injustice, 135 U.Pa.L.Rev. 1281, 1304 (1987).
In sum, we must reject petitioners' argument. Transforming a commissioned work into a work
by an employee on the basis of the hiring party's right to control, or actual control of,
the work is inconsistent with the language, structure, and legislative history of the work
for hire provisions. To determine whether a work is for hire under the Act, a court first
should ascertain, using principles of general common law of agency, whether the work was
prepared by an employee or an independent contractor. After making this determination, the
court can apply the appropriate subsection of s 101.
B
We turn, finally, to an application of s 101 to Reid's production of "Third
World America." In determining whether a hired party is an employee under
the general common law of agency, we consider the hiring party's right to control
the manner and means by which the product is accomplished.
[FN18] Among the other factors relevant to this inquiry
are the skill required; [FN19]
the source of the instrumentalities and tools;
[FN20] the location of the work;
[FN21] the duration of the relationship between the
parties; [FN22] whether the hiring
party has the right to assign additional projects to the hired party;
[FN23] the extent of the hired party's discretion
over when and how long to work; [FN24]
the method of payment; [FN25]
the hired party's role in hiring and paying assistants;
[FN26] whether the work is part of the regular business
of the hiring party; [FN27]
whether the hiring party is in business; [FN28]
the provision of employee benefits; [FN29]
and the tax treatment of the hired party. [FN30] See Restatement s 220(2) (setting forth a nonexhaustive
list of factors relevant to determining whether a hired party is an employee). [FN31] No one of these
factors is determinative. See Ward, 362 U.S., at 400, 80 S.Ct., at 792; Hilton
Int'l Co. v. NLRB, 690 F.2d 318, 321 (CA2 1982).
Examining the circumstances of this case in light of these factors, we agree
with the Court of Appeals that Reid was not an employee of CCNV but an independent
contractor. 270 U.S.App.D.C., at 35, n. 11, 846 F.2d, at 1494, n. 11. True,
CCNV members directed enough of Reid's work to ensure that he produced a sculpture
that met their specifications. 652 F.Supp., at 1456. But the extent of control
the hiring party exercises over the details of the product is not dispositive.
Indeed, all the other circumstances weigh heavily against finding an employment
relationship. Reid is a sculptor, a skilled occupation. Reid supplied his own
tools. He worked in his own studio in Baltimore, making daily supervision of
his activities from Washington practicably impossible. Reid was retained for
less than two months, a relatively short period of time. During and after this
time, CCNV had no right to assign additional projects to Reid. Apart from the
deadline for completing the sculpture, Reid had absolute freedom to decide when
and how long to work. CCNV paid Reid $15,000, a sum dependent on "completion
of a specific job, a method by which independent contractors are often compensated."
Holt v. Winpisinger, 258 U.S.App.D.C. 343, 351, 811 F.2d 1532, 1540 (1987).
Reid had total discretion in hiring and paying assistants. "Creating sculptures
was hardly 'regular business' for CCNV." 270 U.S.App.D.C., at 35, n. 11,
846 F.2d, at 1494, n. 11. Indeed, CCNV is not a business at all. Finally, CCNV
did not pay payroll or Social Security taxes, provide any employee benefits,
or contribute to unemployment insurance or workers' compensation funds.
Because Reid was an independent contractor, whether "Third World America"
is a work for hire depends on whether it satisfies the terms of s 101(2). This
petitioners concede it cannot do. Thus, CCNV is not the author of "Third
World America" by virtue of the work for hire provisions of the Act. However,
as the Court of Appeals made clear, CCNV nevertheless may be a joint author
of the sculpture if, on remand, the District Court determines that CCNV and
Reid prepared the work "with the intention that their contributions be
merged into inseparable or interdependent parts of a unitary whole." 17
U.S.C. s 101. [FN32]
In that case, CCNV and Reid would be co- owners of the copyright in the work.
See s 201(a).
For the aforestated reasons, we affirm the judgment of the Court of Appeals
for the District of Columbia Circuit.
It is so ordered.
FN1.
Purtee was named as a defendant but never appeared or claimed any interest in
the statue.
FN2. Compare Easter
Seal Society for Crippled Children & Adults of Louisiana, Inc. v. Playboy
Enterprises, 815 F.2d 323 (CA5 1987) (agency law determines who is an employee
under s 101), cert. denied, 485 U.S. 981, 108 S.Ct. 1280, 99 L.Ed.2d 491 (1988),
with Brunswick Beacon, Inc. v. Schock-Hopchas Publishing Co., 810 F.2d 410 (CA4
1987) (supervision and control standard determines who is an employee under
s 101); Evans Newton, Inc. v. Chicago Systems Software, 793 F.2d 889 (CA7) (same),
cert. denied, 479 U.S. 949, 107 S.Ct. 434, 93 L.Ed.2d 383 (1986); and Aldon
Accessories Ltd. v. Spiegel, Inc., 738 F.2d 548 (CA2) (same), cert. denied,
469 U.S. 982, 105 S.Ct. 387, 83 L.Ed.2d 321 (1984). See also Dumas v. Gommerman,
865 F.2d 1093 (CA9 1989) (a multifactor formal, salaried employee test determines
who is an employee under s 101).
FN3. We use the phrase
"work for hire" interchangeably with the more cumbersome statutory
phrase "work made for hire."
FN4. As of 1955,
approximately 40 percent of all copyright registrations were for works for hire,
according to a Copyright Office study. See Varmer, Works Made for Hire and On
Commission, in Studies Prepared for the Subcommittee on Patents, Trademarks,
and Copyrights of the Senate Committee on the Judiciary, Study No. 13, 86th
Cong., 2d Sess., 139, n. 49 (Comm. Print 1960) (hereinafter Varmer, Works Made
for Hire). The Copyright Office does not keep more recent statistics on the
number of work for hire registrations.
FN5. Section 101
of the Act defines each of the nine categories of "specially ordered or
commissioned" works.
FN6. By "hiring
party," we mean to refer to the party who claims ownership of the copyright
by virtue of the work for hire doctrine.
FN7. See Supplementary
Report of the Register of Copyrights on the General Revision of the U.S. Copyright
Law: 1965 Revision Bill, 89th Cong., 1st Sess., Copyright Law Revision, pt.
6, pp. 66-67 (H.R. Judiciary Comm. Print 1965) (hereinafter Supplementary Report);
Hardy, Copyright Law's Concept of Employment--What Congress Really Intended,
35 J.Copr.Soc. USA 210, 244- 245 (1988).
FN8. We also reject
the suggestion of respondent and amici that the s 101(1) term "employee"
refers only to formal, salaried employees. While there is some support for such
a definition in the legislative history, see Varmer, Works Made for Hire 130;
n. 11, infra, the language of s 101(1) cannot support it. The Act does not say
"formal" or "salaried" employee, but simply "employee."
Moreover, respondent and those amici who endorse a formal, salaried employee
test do not agree upon the content of this test. Compare, e.g., Brief for Respondent
37 (hired party who is on payroll is an employee within s 101(1)) with Tr. of
Oral Arg. 31 (hired party who receives a salary or commissions regularly is
an employee within s 101(1)); and Brief for Volunteer Lawyers for the Arts,
Inc., et al. as Amici Curiae 4 (hired party who receives a salary and is treated
as an employee for Social Security and tax purposes is an employee within s
101(1)). Even the one Court of Appeals to adopt what it termed a formal, salaried
employee test in fact embraced an approach incorporating numerous factors drawn
from the agency law definition of employee which we endorse. See Dumas, 865
F.2d, at 1104.
FN9. The concept
of works made for hire first arose in controversies over copyright ownership
involving works produced by persons whom all parties agreed were employees.
See, e.g., Colliery Engineer Co. v. United Correspondence Schools Co., 94 F.
152 (CC SDNY 1899); Little v. Gould, 15 F.Cas. 612 (No. 8,395) (CC NDNY 1852).
This Court first took note of the work for hire doctrine in Bleistein v. Donaldson
Lithographing Co., 188 U.S. 239, 248, 23 S.Ct. 298, 299, 47 L.Ed. 460 (1903),
where we found that an employer owned the copyright to advertisements that had
been created by an employee in the course of his employment. Bleistein did not,
however, purport to define "employee."
FN10. See Varmer,
Works Made for Hire 130; Fidlow, The "Works Made for Hire" Doctrine
and the Employee/Independent Contractor Dichotomy: The Need for Congressional
Clarification, 10 Hastings Comm.Ent.L.J. 591, 600-601 (1988). Indeed, the Varmer
study, which was commissioned by Congress as part of the revision process, itself
contained separate subsections labeled "Works Made for Hire" and "Works
Made on Commission." It nowhere indicated that the two categories might
overlap or that commissioned works could be made by an employee.
FN11. See, e.g.,
Preliminary Draft, at 259 (statement of Horace S. Manges, Joint Committee of
the American Book Publishers Council and the American Textbook Publishers Institute)
("There would be a necessity of putting people on the payroll whom the
employers wouldn't want to put on the payroll, and where the employees would
prefer to work as independent contractors"); id., at 272 (statement of
Saul N. Rittenberg, MGM) ("[T]he present draft has given more emphasis
to formalism than necessary. If I commission a work from a man, ordering a work
specially for my purposes, and I pay for it, what difference does it make whether
I put him under an employment contract or establish an independent contractor
relationship?"); id., at 260 (statement of John R. Peterson, American Bar
Association) ("I don't think there is any valid philosophical or economic
difference between the situation in which you have a man on a continuing basis
of orders which justifies placing him on your payroll, and the situation in
which you give him a particular order for a particular job").
FN12. The parties
to the joint memorandum included representatives of the major competing interests
involved in the copyright revision process: publishers and authors, composers,
and lyricists. See Copyright Law Revision: Hearings on H.R. 4347, 5680, 6831,
6835 before Subcommittee No. 3 of the House Committee on the Judiciary, 89th
Cong., 1st Sess., pt. 1, p. 134 (1965).
FN13. An attempt
to add "photographic or other portrait[s]," S.Rep. No. 94-473, p.
4 (1975), to the list of commissioned works eligible for work for hire status
failed after the Register of Copyrights objected: "The addition of portraits
to the list of commissioned works that can be made into 'works made for hire'
by agreement of the parties is difficult to justify. Artists and photographers
are among the most vulnerable and poorly protected of all the beneficiaries
of the copyright law, and it seems clear that, like serious composers and choreographers,
they were not intended to be treated as 'employees' under the carefully negotiated
definition in section 101." Second Supplementary Report of the Register
of Copyrights on the General Revision of the U.S. Copyright Law: 1975 Revision
Bill, Chapter XI, pp. 12-13.
FN14. Strict adherence
to the language and structure of the Act is particularly appropriate where,
as here, a statute is the result of a series of carefully crafted compromises.
See Rodriguez v. Compass Shipping Co., 451 U.S. 596, 617, 101 S.Ct. 1945, 1957-58,
68 L.Ed.2d 472 (1981); United States v. Sisson, 399 U.S. 267, 291, 298, 90 S.Ct.
2117, 2134, 26 L.Ed.2d 608 (1970).
FN15. In framing
other provisions of the Act, Congress indicated when it intended to incorporate
existing case law. See, e.g., H.R.Rep. No. 94- 1476, p. 121 (1976), U.S.Code
Cong. & Admin.News 1976, p. 5736 ("There is ... no need for a specific
statutory provision concerning the rights and duties of the coowners [sic] of
a work; court-made law on this point is left undisturbed"); S.Rep. No.
94-473, supra, at 104 (same).
FN16. Over the course
of the copyright revision process, Congress frequently endorsed a negotiated
compromise which years later in 1976 it formally enacted with only minor revisions.
See Mills Music, Inc. v. Snyder, 469 U.S. 153, 160-161, 105 S.Ct. 638, 643-644,
83 L.Ed.2d 556 (1985).
FN17. Petitioners
concede that, as a practical matter, it is often difficult to demonstrate the
existence of a right to control without evidence of the actual exercise of that
right. See Murray v. Gelderman, 566 F.2d 1307, 1310-1311 (CA5 1978).
FN18. See, e.g.,
Hilton Int'l Co. v. NLRB, 690 F.2d 318, 320 (CA2 1982); NLRB v. Maine Caterers,
Inc., 654 F.2d 131, 133 (CA1 1981), cert. denied, 455 U.S. 940, 102 S.Ct. 1432,
71 L.Ed.2d 651 (1982); Restatement s 220(1).
FN19. See, e.g.,
Bartels v. Birmingham, 332 U.S. 126, 132, 67 S.Ct. 1547, 1550-51, 91 L.Ed. 1947
(1947); Hilton Int'l Co., supra, at 320; NLRB v. A. Duie Pyle, Inc., 606 F.2d
379, 382 (CA3 1979); Restatement s 220(2)(d).
FN20. See, e.g.,
NLRB v. United Ins. Co. of America, 390 U.S. 254, 258, 88 S.Ct. 988, 990-91,
19 L.Ed.2d 1083 (1968); United States v. Silk, 331 U.S. 704, 717, 718, 67 S.Ct.
1463, 1470, 1470-71, 91 L.Ed. 1757 (1947); Dumas, 865 F.2d, at 1105; Restatement
s 220(2)(e).
FN21. See, e.g.,
United Ins. Co., supra, 390 U.S., at 258, 88 S.Ct., at 990-91; Dumas, supra,
at 1105; Darden v. Nationwide Mutual Ins. Co., 796 F.2d 701, 705 (CA4 1986);
Restatement s 220(2)(e).
FN22. See, e.g.,
United Ins. Co., supra, 390 U.S., at 259, 88 S.Ct., at 991; Bartels, supra,
332 U.S., at 132, 67 S.Ct., at 1550-51; Restatement s 220(2)(f).
FN23. See, e.g.,
Dumas, supra, at 1105.
FN24. See, e.g.,
United Ins. Co., supra, 390 U.S., at 258, 88 S.Ct., at 990-91; Short v. Central
States, Southeast & Southwest Areas Pension Fund, 729 F.2d 567, 574 (CA8
1984).
FN25. See, e.g.,
Dumas, supra, at 1105; Darden, supra, at 705; Holt v. Winpisinger, 258 U.S.App.D.C.
343, 351, 811 F.2d 1532, 1540 (1987); Restatement s 220(2)(g).
FN26. See, e.g.,
Bartels, supra, 332 U.S., at 132, 67 S.Ct., at 1550- 51; Silk, supra, 331 U.S.,
at 719, 67 S.Ct., at 1471; Darden, supra, at 705; Short, supra, at 574.
FN27. See, e.g.,
United Ins. Co., supra, 390 U.S., at 259, 88 S.Ct., at 991; Silk, supra, 331
U.S., at 718, 67 S.Ct., at 1470-71; Dumas, supra, at 1105; Hilton Int'l Co.,
supra, at 321; Restatement s 220(2)(h).
FN28. See, e.g.,
Restatement s 220(2)(j).
FN29. See, e.g.,
United Ins. Co., supra, 390 U.S., at 259, 88 S.Ct., at 991; Dumas, supra, at
1105; Short, supra, at 574.
FN30. See, e.g.,
Dumas, supra, at 1105.
FN31. In determining
whether a hired party is an employee under the general common law of agency,
we have traditionally looked for guidance to the Restatement of Agency. See,
e.g., Kelley v. Southern Pacific Co., 419 U.S. 318, 323-324, and n. 5, 95 S.Ct.
472, 475-476, and n. 5, 42 L.Ed.2d 498 (1974); id., at 332, 95 S.Ct., at 480
(Stewart, J., concurring in judgment); Ward v. Atlantic Coast Line R. Co., 362
U.S. 396, 400, 80 S.Ct. 789, 792, 4 L.Ed.2d 820 (1960); Baker v. Texas &
Pacific R. Co., 359 U.S. 227, 228, 79 S.Ct. 664, 665, 3 L.Ed.2d 756 (1959).
FN32. Neither CCNV
nor Reid sought review of the Court of Appeals' remand order. We therefore have
no occasion to pass judgment on the applicability of the Act's joint authorship
provisions to this case.