Principles of Copyright Law – Cases and Materials

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III. OWNERSHIP OF RIGHTS

look upon the matter as a terrestrial one, of the earth earthy, and I propose to deal with it on that

footing. In my opinion the plaintiff has made out her case, and the copyright rests with her.

B. EXCEPTIONS TO THE GENERAL RULE

• Works made by employees

First ownership of copyright where the author is employed by another person

to create works may be resolved in different ways in different countries.

(a) In some countries, the author is always the first owner of copyright,

even though the work was made as an employee as part of his job.

(b) Elsewhere, e.g., the United States, an employee is neither the author

nor the first owner: his employer is both the first owner and the author.

Indeed, even some classes of freelance authors may not be treated as

authors or first owners if they sign an agreement that they are creating

a work “made for hire”: see the Community for Creative Non-

Violencecase, below. (Whether this rule is consistent with Berne, to

the extent that the “real” author is automatically deprived of his moral

right, may be doubted.)

(c) In still other countries (e.g., the U.K.), the employee remains the author

of his work, but the employer is presumed to be the first owner of the

copyright, unless there is a contrary agreement. Occasionally, the

same presumption applies to a limited class of freelancer – e.g., in

Canada, where an engraving, portrait or photograph is made or taken

by the independent contractor.

Two cases – one from the U.S., the other from the U.K. – illustrate the operation

of these rules in those countries.

• A freelance author is presumed to be the first owner of the copyright

Community for Creative Non-Violence v. Reid, 490 U.S. 730 (U.S.:

Supreme Court, 1989)

[The plaintiff was a non-profit association dedicated to relieving the plight of

homeless people. It commissioned a sculpture from the defendant artist to

publicize its cause. It paid the defendant $15,000 for work and materials, he

donating his time. A dispute later arose over who owned the copyright of the

work entitled “Third World America”. The plaintiff claimed that the defendant

was its employee and that it therefore owned the copyright. The Court found for

the defendant.]

JUSTICE MARSHALL for the Court:

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. ... The contours of the work for hire doctrine ... carry profound significance for

freelance creators – including artists, writers, photographers, designers, composers, and