and court decisions. It allocates ownership rights, in certain circumstances, to those publishers who undertake the economic and creative initiative and control over the authorship process, and who bear the economic risk for the creation of certain works. The principle that an employer should own the copyright in a work created, within the scope of employment, by an employee has long been recognized under the rubric of "work made for hire." Since 1978, the Copyright Act has expressly provided that, in the case of such works, the employer shall be deemed the "author" of such works and thereby automatically own the copyright therein, 10 but the definition of "employee" has been left to the courts. The statute also now provides that a work made by an independent contractor on commission may be a work made for hire if: the work falls into one of the categories specified in the law, 11 and the commissioning and commissioned parties so agree in a signed writing. 12 During the last decade, many courts have sought to apply 10 17 U.S.C. §201(a). 11 These are: contributions to a collective work, parts of motion pictures or other audiovisual works, translations, supplementary works (forewords, afterwords, illustrations, maps, and the like), compilations, instructional texts, tests and answer materials therefor, and atlases. 12 17 U.S.C. §101. these statutory definitions; they did so in ways that were not always consistent.13 The recent decision of the Supreme Court in CCNV v. Reid14 has resolved many of the inconsistencies in the application of the statutory definitions of works made for hire by holding that the term "employee" should be judged in accordance with agency law principles. While it is true that some AAP members would have supported a different result in that litigation, the decision has been accepted by many of our members, particularly because it resolves a split in the Circuits by incorporating into the copyright law a relatively well-developed body of law concerning how one determines whether a particular person is an "employee." As CCNV was decided in the spring of this year. It would seem prudent, then, to determine the impact of the decision before contemplating legislation that would undermine it. the Supreme Court has noted, the current statutory workmade-for-hire provisions represent a compromise made in 1965 13 Compare Aldon Accessories, Ltd. v. Spiegel, Inc., 738 F.2d 548 (2d Cir. 1984) and Evans Newton, Inc. v. Chicago Systems Software, 793 F.2d 889 (7th Cir. 1985) (independent contractors may be employees if commissioning party exercises sufficient supervision over work (thus obviating the need for reference to the categories and signed writing requirements)) with Easter Seal Society for Crippled Children, Inc. v. Playboy Enterprises, 815 F.2d 323 (5th Cir. 1987) ("employee" determination governed by rules of agency; independent contractors generally not employees) and Dumas v. Gommerman, 865 F.2d 1093 (9th Cir. 1989) (independent contractors can never be employees). 14 109 S.Ct. 2166 (1989). sections 101 and 201 of the law hire - - · concerning works made for but also the termination and duration provisions. The decision in CCNV restates the balance inherent in the compromise; S. 1253, if enacted, would overwhelm it, and the provisions of this bill cause us substantial concern. The bill would provide that the "scope of employment" prong of the statute's definition would apply only to works prepared by "formal salaried employees." This contrasts with the rule announced by the Supreme Court that one should look to conventional agency law to determine who is an "employee" in the context of works made for hire. While there exists a large body of law concerning the term "employee" including the cases cited by the Supreme Court and set out in the Restatement of Agency to our knowledge the phrase "formal salaried employee" has never - - copyright been used in any "employer-employee" decisions or otherwise apart from the Gommerman case, in which the Ninth Circuit adopted it as a standard regarding works made for hire, and CCNV, where the Supreme Court rejected it. It is defined neither in the bill nor by the common law, and would likely require elucidation in court if it became part of the statute. increasingly tele-commuting, sharing jobs, sharing employers, and creating new modes of employment and means of compensation. In this environment, with no precedents from which guidance may be sought, the meaning of "formal salaried employee" would be difficult to determine. Unfortunately, S. 1253 does not provide even an unclear rule on this crucial point. With respect to commissioned works, S. 1253 raises similar grave uncertainties. The requirement that an agreement be signed for "each such work" at a time "before commencement of the work" raises many questions whose answers can not be gleaned from the bill. With respect to certain commissioned works such as contributions to collective works, standardized test questions, dictionary definitions, encyclopaedia articles, and supplementary works, traditional practice has been to obtain single agreements covering all contributions of a "commissionee" to a particular work. Under the bill, however, not only would all such agreements have to be signed in advance (as is not now the case), but it appears that each separate contribution might require a separate signed writing. It is also unclear when the bill would treat "the work" When a free-lance writer calls an editor on the When the writer submits a detailed outline, - - that, by operation of law, - for consideration prior to being treatment, or chapter When the writer begins work on the entire work as And, for that matter, in the case of an encyclopaedia, would the commencement of work on any part of the encyclopaedia end the time available for signing any agreements "in advance," or would each separate contribution How would contributions to be a "work" for this purpose? later editions be treated? The "separate writing in advance" standard would leave so many questions unanswered that it likely would amount to little more than grist for lawyers. Large, well-represented corporations will be able to protect themselves, while small entrepreneurs will find themselves unjustly deprived of rights in works to which they truly gave birth. One of the results of S. 1253 would be an administrative nightmare: not only an explosion of paperwork, but a drastic increase in the time spent arranging to publish a work. Negotiations over terms, document transmittals and the like (all of which might have to be a writing, and if such writings must be executed in advance, then publishers may be forced to seek, for example, separate writings covering later works at the same time that Some works, agreements covering earlier works are executed. |