Works Made for Hire Ana Enriquez, Penn State Miami

Transcript:Works Made for Hire Ana Enriquez, Penn State Miami:
Works Made for Hire Ana Enriquez, Penn State Miami University Libraries Copyright Webinar Series September 15, 2020 This presentation is licensed under the CC BY 4.0 International License. Outline U.S. Law Prior to 1978 Current U.S. Law Teacher Exception Comparative Law First, a few reasons to care: Determining who holds copyright Determining copyright duration and thus public domain status Determining who had the right to renew copyright (matters only for works that were in their initial term on January 1, 1978) Determining whether there’s a right to terminate a transfer Determining whether VARA rights apply U.S. Law Prior to 1978 U.S. Law Prior to 1978 Work for hire provisions in 1976 Copyright Act do not apply retroactively to pre-1978 works. Previous statute: “The word ‘author’ shall include an employer in the case of works made for hire” - Copyright Act of 1909, §62, 17 U.S.C. §26 (1976 ed.) Very similar to current language, but it doesn’t define “works made for hire.” The work for hire doctrine for pre-1978 works is almost entirely judge made. U.S. Law Prior to 1978 Under the 1909 Copyright Act, works were made for hire if they were created within traditional employment relationships or relationships where the hiring party had the right to control the hired party. Teacher Exception “[V]irtually no one questioned that the academic author was entitled to copyright his writings.” -Hays v. Sony Corp. of America, 847 F.2d 412 (7th Cir. 1988). U.S. Law Prior to 1978 As is the case today, other works could also be works made for hire in some circumstances. Work was created at “instance and expense” of hiring party: Instance: hiring party was motivating factor in the work’s creation Expense: hiring party paid a fee to creator (Under some interpretations, this had to be paid up front rather than via royalty.) The parties intended it to be a work made for hire. If the intent of the parties was unclear, the presumption favored the hiring party. A written contract was not required (because unpublished works were covered under state common law, not federal statutory copyright). Example: Instance “Kirby’s works during this period were hardly self-directed projects in which he hoped Marvel, as one of several potential publishers, might have an interest; rather, he created the relevant works pursuant to Marvel’s assignment or with Marvel specifically in mind. Kirby’s ongoing partnership with Marvel, however unbalanced and under-remunerative to the