A songwriter hires and pays a person to create a musical track for the lyrics the songwriter has written. An artist hires and pays three background vocalists to sing on a recording featuring the artist. A business owner hires and pays a photographer to photograph the business for use on the business owner’s website. Who owns the lyrics, the recording, and the photograph? Often people think because they hired and paid someone to create a copyrightable work (or part of one) that it means the work that is created is a work for hire, and that the hiring party is the copyright owner. It is a common mistake, but it can cause havoc and legal expenses as one non-profit group recently discovered.
The parties to this copyright infringement action were activists working to end sexual violence in the military. The photographer took the photos at issue on a trip to Washington, D.C. with the non-profit to protest and to lobby lawmakers regarding sexual violence in the military. The parties had a falling out and the photographer demanded that the non-profit stop using certain photographs and to pay damages for past unauthorized uses.
The parties did not know one another before the photographer’s wife volunteered and joined the non-profit’s board a few months before the D.C. trip. The photographer went on the trip as a volunteer and took over 1,500 photographs of the protest activities over two days that included photos of his wife and other board members. During the trip, a dispute arose about an unannounced protest at the home of the Commandant of the U.S. Marine Corps that the non-profit livestreamed on social media. The photographer’s wife and other board members resigned from the non-profit, and in their resignation notices, they and the photographer stated that they withdrew their consent to use any of the photographs or their names. The non-profit used 26 of the photos on social media, and a lawsuit ensued in the Western District of Pennsylvania.
The photographer argued he owned the photos because he took them, making him the author under copyright law. The non-profit argued that the photos were a work for hire because he was an “official volunteer” who agreed to travel to D.C. to take the photos. The parties did not have a written agreement between them.
The outcome of this dispute is quite simple. A work for hire occurs in only two circumstances. First, one must be an employee who created the work in the course and scope of his employment. Second, the work is a specially commissioned work, there is a written agreement signed by both parties, and the work is one of the nine enumerated categories of works that constitute works for hire.
The court found the work for hire definition did not apply to the photographs. First, there was no written agreement between the parties and thus, the photographs were not specially commissioned works. Next, the court concluded the photographer and non-profit were not in an employer-employee relationship. The photographer was a volunteer and thus, he was neither an employee nor an independent contractor, particularly since he received no compensation. The court did an analysis of the employer-employee relationship versus independent contractor and found that his volunteer status at best was a non-agent independent contractor that did not rise to the level of employment. A volunteer is not “hired” under traditional agency law principles.
In this instance, a volunteer was not “hired.” In other more common scenarios, even payment will not create a work for hire with the hiring party being the “author” and copyright claimant unless the relationship between the parties meets the statutory definition of “work for hire.” When a person is not an employee who creates the work for his employer in the course and scope of his employment, there must be a writing signed by both parties agreeing that the work created is a work for hire, and the specially commissioned work must be one of the nine enumerated works to qualify as a work for hire, namely 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. Photographs taken by a volunteer for a non-profit is plainly not among the categories, no matter how “official” his volunteering was.
In case you were wondering about the common scenarios that opened this article, the lyricist and musical track creator are co-authors of the musical composition, the background vocalists are co-authors of the recorded performance of the featured artist, and the photographer owns the photograph of the business. Consulting an entertainment attorney and getting an agreement in writing in advance is key to avoiding disputes, hurt feelings, and financial losses.