The Copyright Act

THIS CASEBOOK contains a selection of U. S. Court of Appeals decisions that analyze, interpret and discuss provisions of the Copyright Act. Volume 1 of the casebook covers the District of Columbia Circuit and the First through the Sixth Circuit Court of Appeals.
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American copyright law has long recognized that a work created by an employee belongs to the employer, who is then viewed as the author and copyright holder. See Bleistein v. Donaldson Lithographing Co., 188 U.S. 239, 248, 23 S.Ct. 298, 47 L.Ed. 460 (1903). This judge-made doctrine was "later codified in the Copyright Act of 1909." Forward v. Thorogood, 985 F.2d 604, 606 (1st Cir. 1993). However, the 1909 Act did not provide much detail. It indicated that "[t]he word 'author' shall include an employer in the case of works made for hire," 17 U.S.C. § 26 (1976 ed.) (1909 Act), but did not define "employer" or "works made for hire." As a result, "the task of shaping these terms fell to the courts." Cmty. for Creative Non-Violence v. Reid, 490 U.S. 730, 744, 109 S.Ct. 2166, 104 L.Ed.2d 811 (1989).

Initially, courts limited the doctrine to "the traditional employer-employee relationship," that is, to "a work created by an employee acting within the scope of employment." Forward, 985 F.2d at 606. Later, however, courts extended the doctrine "to include commissioned works created by independent contractors." Id. In these situations, courts would "treat[] the contractor as an employee and creat[e] a presumption of copyright ownership in the commissioning party at whose 'instance and expense' the work was done." Id.; see also 1 Nimmer on Copyright § 5.03[B][1][a][i] (noting that, under the 1909 Act, "the courts expanded the definition of 'employer' to include a hiring party who had the right to control or supervise the artist's work"). In practice, this test often favors the hiring party. See Roger E. Schechter & John R. Thomas, Principles of Copyright Law § 5.2.1 (1st ed. 2010) (noting that, "[e]ven in situations very far removed from the typical employer-employee case," the test "was often satisfied because the hiring party was the one who was the 'motivating factor' for the project and who had at least a theoretical 'right to supervise' the work").

In the Copyright Act of 1976, Congress introduced a more explicit, two-part framework that applied to works created on or after January 1, 1978 (the effective date of the Act). 17 U.S.C. § 101; Forward, 985 F.2d at 605. The 1976 Act defined a "work made for hire" as either:

(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.
17 U.S.C. § 101.

Markham Concepts, Inc. v. Hasbro, Inc., 1 F. 4th 74 (1st Cir. 2021)