Title

Analysis of differences between creators of literary and artistic works and their commissioning parties in the interpretation of the work made for hire provisions of the Copyright Law of the United States (Title 17, 94-553); the implications for education and business

Date of Award

1997

Degree Type

Dissertation

Degree Name

Doctor of Philosophy (PhD)

Department

Writing Program

Advisor(s)

Philip Doughty

Keywords

Creators, Artistic works, Commissioning parties, Work made for hire provisions, Copyright Law of the United States, Education, Business, Literary works

Subject Categories

Entertainment, Arts, and Sports Law

Abstract

The Copyright Law of the United States (CLUS) protects the creation of all literary and artistic works including business and education for the life of the author plus 50 years (CLUS, §201[a] and §302). The work made for hire (WMFH) provisions are an exception to §201(a) and §302 wherein the employer of an employee working within the scope of regular, salaried employment automatically becomes the owner and author of the employee's work (CLUS, §101[1]). In the case of an independent contractor (freelance creator) who accepts commissioned assignments from publishers and producers (commissioners), first ownership and authorship rights belong to the freelancers unless the work falls within nine categories of works described as WMFH (CLUS, §101[2]). In WMFH the commissioner becomes the author and owner of the work created by the freelance author (CLUS, §201[b]). Much of our literary and artistic work is created on commission. Therein lies the problem created by the WMFH doctrine.

Freelance authors argue the WMFH provisions take away their right to profit from creative works they produce as independent business entrepreneurs, and as in no other industry, improperly awards them to the commissioners who become the owners and authors as though they had created the work. They claim WMFH denies them the right to negotiation and access to a free and open marketplace unencumbered by discriminatory federal regulation.

Commissioners and their supporters in Congress have held that as long as they initiate, finance, and take the risk of sponsoring a commissioned work and then supervise, direct, and control the production, they are entitled to ownership and authorship rights. Creators allege that following a compromise agreement between the parties many commissioners have been less than forthright in administering the WMFH provisions when awarding commissioned works because of loopholes inadvertently created in the law.

Some legal scholars take the position WMFH represents a century old erosion of authorial rights in the United States which instead favors corporate economic gain in contradiction to the provisions of the Berne International Convention on Copyright. Congress and the courts have been unsympathetic to the erosion of authorial rights and the plight of creative entrepreneurs.

A survey of 109 copyright experts addressed the differences between creators and commissioners in their interpretation of the WMFH provisions of the CLUS and the implications for business and education. Most respondents indicated there is a place for WMFH in certain circumstances, but held little hope for Congressional reform in the foreseeable future, which would restore the equitable balance of ownership and authorship rights freelance creators argue was originally intended by the Constitutional provision for copyright protection. This dissertation is an historical study of WMFH in the United States and its impact on industry and education.

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