846 F.2d 1485 (D.C. Cir. 1988), 87-7051, Community for Creative Non-Violence v. Reid

Docket Nº:87-7051.
Citation:846 F.2d 1485
Party Name:COMMUNITY FOR CREATIVE NON-VIOLENCE, et al. v. James Earl REID, Appellant.
Case Date:May 20, 1988
Court:United States Courts of Appeals, Court of Appeals for the District of Columbia Circuit

Page 1485

846 F.2d 1485 (D.C. Cir. 1988)



James Earl REID, Appellant.

No. 87-7051.

United States Court of Appeals, District of Columbia Circuit.

May 20, 1988

Page 1486

As Amended May 20 and May 31, 1988.

Argued Jan. 29, 1988.

Robert S. Schlossberg, with whom William L. Gardner and Grace E. Speights, Washington, D.C., were on the brief, for appellant.

Terri A. Southwick, of the bar of the Court of Appeals of the District of Columbia, pro hac vice, by special leave of Court, with whom Timothy D. Junkin and L. Barrett Boss, Washington, D.C., were on the brief, for appellees.

Charles D. Ossola, Washington, D.C., for amicus curiae, The Copyright Justice Coalition.


Opinion for the Court filed by Circuit Judge RUTH BADER GINSBURG.


This case calls for interpretation of the "work made for hire" prescriptions of the Copyright Act of 1976 (1976 Act), 17 U.S.C.

Page 1487

Secs. 101, 201 (1982). 1 The issue is novel in this circuit and has divided sister courts. Compare Easter Seal Society for Crippled Children and Adults of Louisiana, Inc. v. Playboy Enterprises, 815 F.2d 323 (5th Cir.1987), cert. denied, --- U.S. ----, 108 S.Ct. 1280, 99 L.Ed.2d 491 (1988), with Aldon Accessories Ltd. v. Spiegel, Inc., 738 F.2d 548 (2d Cir.), cert. denied, 469 U.S. 982, 105 S.Ct. 387, 83 L.Ed.2d 321 (1984), and Evans Newton Inc. v. Chicago Sys. Software, 793 F.2d 889 (7th Cir.), cert. denied, --- U.S. ----, 107 S.Ct. 434, 93 L.Ed.2d 383 (1986).

In the case at hand, the district court held the work for hire doctrine applicable and rested its judgment for the plaintiff on that doctrine. Following the path marked by the Fifth Circuit, we rule that case law on works made for hire developed under the Copyright Act of 1909 (1909 Act) no longer holds sway; in accord with Easter Seal Society, 815 F.2d at 324, we conclude that the "1976 Act has greatly restricted the scope of the 'work for hire' doctrine." Based on the construction we hold proper under the current Act, we reverse the district court's judgment and remand the instant case for further proceedings.


Plaintiff-appellee in this case, the Community for Creative Non-Violence (CCNV), is a Washington, D.C.-based non-profit unincorporated association devoted to the welfare of homeless people. In the fall of 1985, CCNV decided to participate in the annual Christmas Pageant of Peace in D.C. by sponsoring a display that would dramatize the plight of the homeless. As the district court recounted, Mitch Snyder, CCNV's agent and trustee (also named as a plaintiff-appellee in this action), and other 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."

Community for Creative Non-Violence v. Reid, 652 F.Supp. 1453, 1454 (D.D.C.1987).

Snyder contacted James Earl Reid, a Baltimore sculptor and defendant-appellant herein; in the course of two telephone calls in October 1985, CCNV and Reid reached an agreement. Reid promised to sculpt the three human figures for "Third World America" and a shopping cart containing their meager belongings; he agreed to use a synthetic substance called "Design Cast 62" that could be tinted to resemble bronze. CCNV assumed responsibility for the steam grate and the pedestal. For a total outlay of approximately $7,000-$8,000, CCNV engaged a cabinetmaker to construct the pedestal, obtained the special-effects equipment from a company in California, and acquired the chemicals needed to produce the simulated steam from Mobil Oil Company in New Jersey. The parties agreed that Reid's portion of the sculpture would cost no more than $15,000, not counting the sculptor's own services, which Reid donated to the venture; they further agreed that Reid's work would be delivered to CCNV by December 12 for attachment to the base preparatory to display of the total creation in the Pageant. Neither party mentioned copyright.

Reid and his assistants worked on the figures for the sculpture throughout November and December, conferring from time to time with various CCNV members and making changes to the form and arrangement of the figures to accommodate

Page 1488

CCNV's requests. On December 24, 1985, Reid delivered his portion of "Third World America" to D.C. where it was joined to the steam grate pedestal and placed on display near the site of the Pageant. At that time, Reid received $3,000 from Snyder, the final installment of the $15,000 total payment due to him under the agreement.

In late January 1986, CCNV sent the entire sculpture to Reid so that he could repair damage to the foot of the male figure that occurred in the original transportation from Baltimore to D.C. The following month, CCNV began making plans to take the sculpture on a tour of several cities to raise money for the homeless. Reid objected to the planned tour insisting that the Design Cast 62 material was too delicate to withstand the ambitious itinerary; he urged CCNV to cast "Third World America" in bronze or to have a "master mold" made. CCNV declined to fund these additional undertakings but invited Reid to do so at his own expense.

In March 1986 CCNV asked Reid to return the sculpture; Reid refused. He filed a certificate of copyright registration for "Third World America" in his own name on March 20, 1986, 2 and announced his own plans to take the sculpture on an exhibition tour more moderate than the one CCNV had projected. Snyder filed a competing certificate of copyright registration in his name on May 21, 1986. 3 On June 2, 1986, CCNV commenced this litigation against Reid. The complaint sought return of the sculpture and a determination of copyright ownership. On July 25, 1986, the district court granted a preliminary injunction ordering Reid to return the sculpture to CCNV. On February 9, 1987, after a two-day bench trial, the district court declared "Third World America" a work made for hire whose copyright is owned exclusively by CCNV. Reid timely appealed that final decision.


The 1976 Act prescribes that copyright ownership 4 "vests initially in the author or authors of the work," and that "authors of a joint work are coowners of copyright in the work." 17 U.S.C. Sec. 201(a). As to a work made for hire, the Act provides that

the employer or other person for whom the work was prepared is considered the author for purposes of this title, and, unless the parties have expressly agreed

Page 1489

otherwise in a written instrument signed by them, owns all of the rights comprised in the copyright.

17 U.S.C. Sec. 201(b). "Work made for hire" is defined in the Act as

(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....

17 U.S.C. Sec. 101 (numbers in brackets added). Our task is to determine where the contending parties fit within this statutory framework, specifically, is Reid an "author" of the sculpture "Third World America," as that term is used in the section on ownership of copyright, Sec. 201, or is CCNV the only party "considered the author"? The provision in Sec. 101 defining "work made for hire" is key to this inquiry.

The first subpart of the Sec. 101 "work made for hire" definition concerns work prepared in an "employment" setting; the second concerns works "specifically ordered or commissioned." Does the distinction Congress made between "employment" in Sec. 101(1) and "commissioned" work in Sec. 101(2) mean, the Fifth Circuit asked in Easter Seal Society, 815 F.2d at 328, that the work of an independent contractor can be placed in the "work made for hire" category only when the work is of a type Sec. 101(2) describes in its nine tightly-drawn categories (and, even then, only when the parties so agree)? The Fifth Circuit, in disagreement with the Second and Seventh Circuits, answered this question affirmatively. 5 We set out below the conflicting interpretations advanced in recent circuit decisions, align ourselves with the Fifth Circuit's position, and then consider whether "Third World America" may qualify as a joint work of art, with copyright in the work co-owned by two or more authors. See 17 U.S.C. Sec. 101 (definition of "joint work").

  1. The Second and Seventh Circuit Interpretation

    The 1909 Act defined the word "author" to include an employer in the case of works made for hire, 17 U.S.C. Sec. 26 (repealed 1976), but did not further delineate the "work made for hire" domain. Case law interpreting that Act treated expansively the relationships that qualified under the employer-employee rubric; a test of actual control by the commissioning party slackened to become a right to control (even if not exercised) standard....

To continue reading