DB Forum 3
In this situation, Steve would be the right one since the photographs he took are not works made for hire, and because he is the individual who hit the shutter button, thus making them his photos. 17 U.S.C. § 101. To fully understand why Steve is right and Diane is not, one must know that copyright laws surrounding the category of works called works made for hire and those for who copyright ownership belongs to. Works made for hire is defined as being “a work that is presumed to be authored by an employer because it was created by an employee on company time or work authored by a commissioning party will own the copyright and the work falls into one of the nine statutorily numbered categories.” Deborah E. Bouchoux, Intellectual Property: The Law of Trademarks, Copyrights, and Trade Secrets (5th ed. 2018). Steve’s photos could have been deemed as a work(s) made for hire under specially commissioned work if Steve and Diane had entered into a written agreement with one another. Id. This is because in order for a work to be considered a specially commissioned work(s), where the commissioning party (Diane) is granted ownership of the works (photos), all three of the conditions have to be met. Id. These three conditions are: has to be specially ordered or commissioned work; the involved parties have entered into a written agreement that states the work(s) are one(s) made for hire; and that the work fits into one of the nine numbered categories that are listed under 17 U.S.C. § 101. Id. So it is the nonexistent written agreement between Steve and Diane stating that the photos are works made for hire that is keeping Diane from being right since the other two conditions were met. The U.S. Copyright Office even takes the time to explain that even someone who hires a photographer to take pictures of their wedding day (or other events), it is the photographer that owns the copyright for those photos. Rachel Brenke, Photography Copyright Laws, Thelawtog, https://thelawtog.com/copyright-laws-for-photographers/#:~:text=Copyright%20is%20a%20property%20right,the%20employer%20of%20the%20photographer. The ownership of the copyright for those photos stay with the photographer since he/she is the one who took the photos unless the photographer chooses to transfer the copyright ownership for said photos to another person by way of a written document that clearly states the transfer and that has been signed by the photographer. Id.
If Steve and Diane were to bring the issues surrounding ownership of the copyright photographs, I believe that a judge would rule that Steve is the owner of those copyrighted photographs. There are many laws and/or reasons that the judge could include in his or her court opinion. One reason being that Steve would be considered an independent contractor and not an employee since Steve was never underneath Diane’s control; thus making Steve the owner of the copyright photographs if those photographs are not found to be works made for hire under the specially commissioned works category. Bouchoux, supra. The judge would then look at the facts in the case to determine if all three of the required conditions for specially commissioned works that would make a independent contractor’s work one made for hire was met or not. Id. As previously mentioned, one of the three conditions is a written agreement, that has been executed by both/all parties involved, granting ownership for the copyright of a said work(s) to the commissioning party. Id. Unfortunately for Diane, she did not obtain a written agreement between Steve and herself, so a judge would still continue to find Steve to be the owner of the copyright since there is no possibility of the photographs being a work(s) made for hire due to there not being a written agreement granting the copyright ownership to the commissioning party. Id. I believe that the judge would explain to Diane that she is wrong and that the only way that she could obtain ownership of these copyrighted photographs is if Steve signs a written statement clearly stating that he is transferring copyright ownership of the photographs to Diane. Lastly, I believe that the judge would advise Diane to in the future always enter a written agreement, that is signed by al parties involved, granting her copyright ownership of the photographs that a photographer takes at her clients’ events.
DB Forum 3
The goal here is to determine the copyright ownership of the photographs taken at a special event. Using the facts given in the forum instructions:
(1) Steve is an amateur photographer.
(2) Diane owns Incredible Parties.
(3) Diane asked Steve if he would photograph an Incredible party for renumeration in the amount of $50 per hour.
(4) Steve agreed.
(5) Diane and Steve did not enter into a contract, written or oral.
(6) Steve took photographs at an Incredible party.
(7) Steve kept the photographs on a website that he maintains.
(8) Diane planned to use the pictures for promotional and advertising purposes.
(9) Steve will not give Diane the photographs.
(10) Steve believes he holds the copyright on the photographs.
(11) Diane believes she holds the copyright on the photographs.
In order to determine who actually owns the copyright, we must apply the elements of copyright ownership to the facts at hand that are provided to us by Chapter 12 (Copyright Ownership, Transfers and Duration), keeping in mind that ownership in a physical object is separate and distinct from ownership of the copyright embodied in the physical object (Bouchoux, 12-1):
A. the original author(s) own the copyright of a created work equally regardless of individual contribution;
B. the original author(s) may transfer their own copyright either exclusively or non-exclusively;
C. the employer owns the copyright of a created work for hire if the relationship provides for an employee under common law agency principles allowing the employer to:
1. control the work done,
2. control the manner in which the employee performs the work,
3. offer the employee benefits and withdraws taxes from compensation; (Community for Creative Non-Violence v. Reid, 490 U.S. 730 (1989))
D. the created work is the product of an independent contractor and it must fall into one of nine categories outlined in Title 17 U.S.C. § 101.
Regarding Element A, Steve could not have created the photographs without Diane’s assistance. So, it is possible that they could each own a 50%-50% share of the copyright of the photograph
Regarding Element B, neither Steve nor Diane appear to be interested in transferring their possible 50% share to the other.
Regarding Element C, Diane did not at anytime control Steve’s photographic work, nor the manner in which it was done. She also did not offer him any gratuitous benefits for he work. So, Element C is not met.
Regarding Element D, in looking to rather it is a work created by an employee or a independent contractor, the photographs fall outside of the perimeters established by the Supreme Court in Title 17 U.S.C. § 101. So, Element D is not met.
Since Element C and Element D are not met, therefore it is probably not an actionable case for Steve to initiate, and it appears to be an issue to drop and therefore transfer the photograph to Diana. However, it is likely that Diana would be successful litigating against Steve, and most likely won, based on the facts presented that are drawn from Title 17 U.S.C. § 101.