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)).
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.
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.
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.