Ownership of creative work challenged; outcome of sculpture court battle could affect magazines' use of freelance work

Folio: The Magazine for Magazine Management, April, 1989 by Jan Jaben

Ownership of creative work challenged

Washington, D.C.--Magazine and newspaper publishers are closely watching a case before the U.S. Supreme Court that centers on a sculpture depicting a homeless family huddled on a steam grate. The legal battle pits the sculptor against the commissioner of the work, both of whom claim the copyright. At issue are lucrative licensing and reproduction rights.

Publishers see the danger of a precedent affecting their own products. They are concerned about their ability to own and control the parts of their publications produced by freelancers. Thus, the Magazine Publishers of America (MPA), Hearst Corp., The New York Times Co., Playboy Enterprises Inc. and Time Inc. have filed a friend of the court brief that asks the Supreme Court to reverse the decision of the Court of Appeals for the District of Columbia, which ruled that rights to the sculpture belong to the artist.

The Community for Creative Non-Violence (CCNV) commissioned sculptor James Earl Reid to make the sculpture of the family; others made the grate and the pedestal. CCNV directed the project, paid for the materials, and came up with the name: "Third World America."

When the group announced plans to take the sculpture on the road, Reid refused, and CCNV sued. A trial court said CCNV owns the sculpture; the appeals court overturned the verdict.

The argument focuses on what the words "employee" and "work for hire" mean as they appear in the 1976 copyright act. The appellate court said Reid didn't qualify as an employee, and since the parties had no written agreement, the artwork did not qualify as work for hire. The court, found, then, that Reid owns the rights but not the sculpture, and suggested that the artwork could be shared by the parties.

CCNV has now appealed to the high court, which could hear arguments as early as this spring.

The copyright act provides that "in the case of a work made for hire, the employer or other person for whom the work was prepared is considered the author ... and, unless the parties have expressly agreed otherwise in a written instrument signed by them, owns all of the rights comprised in the copyright." One of the definitions of work for hire is "a work specially ordered or commissioned."

According to the publishers' amicus curiae brief, "The relationship between CCNV and Reid is remarkably similar to the typical relationship between a magazine or newspaper publisher and the freelance writers and graphics people it employs for a given issue."

The MPA's position is that "those who are closely supervised and work on a regular basis and are told what to do, are considered employees for the copyright act," notes Slade Metcalf, attorney with Squadron, Ellenoff, Plesent and Lehrer, who drafted the amicus brief. "That's what work for hire means. Some artists who don't work that closely with a publication and may or may not have a written agreement with the publisher are true independent contractors."

"This is an important case," says Harry M. Johnston III, vice president and general counsel for Time Inc. Magazines. "If the commissioning party can't be owner of the work unless the person is a technical employee, it will diminish the desire for them to commission works--to the detriment of us all.

"We have established relationships with writers, photographers and artists," Johnston notes. "If we had to sit down and negotiate rights each time, it would wreak havoc with our ability to put out a magazine."