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Gaiman v. McFarlane - 360 F.3d 644 (7th Cir. 2004)


A commissioned work not falling under the second option of the work made for hire provision in 17 U.S.C.S. § 101 may be deemed a work for hire under the first option of the provision if, for example, the commissioning party pays the author a monthly stipend, pays health and other fringe benefits during the time the author works on the project, and exercises overall though not necessarily daily supervision. The work for hire concept isn't limited to formal employment because a functionally identical relationship can be created by skillful drafting of contracts that purport to treat the (de facto) employee as an independent contractor. The work for hire provision is not unique in sensibly forgoing a definition of "employee" or "employment" and by doing so empowering the courts to define these terms from case to case on a practical rather than formal basis, using the principles of agency law to prevent evasion of the statutory purpose.


Plaintiff Neil Gaiman, a scriptwriter, accepted defendant Tom McFarlane's, a publisher, invitation to write a script for an issue of McFarlane's comic book without a written agreement. Subsequently, Plaintiff Gaiman (and his closely-held company) sued defendant McFarland (and his closely-held company), seeking a declaration that Gaiman owned copyrights jointly with the publisher in certain comic-book characters under the Copyright Act.  The jury found in favor of Gaiman, and McFarlane appealed. Plaintiffs cross-appealed the dismissal of a breach of contract claim.


Does a scriptwriter own copyrights jointly with the publisher based on a commissioned work?




The court upheld the decision that Gaiman was a co-owner of the characters in question. The suit was timely because the statute of limitations under 17 U.S.C.S. § 507(b) began to run when the publisher, McFarlane, unambiguously denied that the scriptwriter had copyrights on the three characters, not when the comic book was published with a copyright notice that did not mention Gaiman. The court also determined that the characters at issue were copyrightable.

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