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Playboy Enters. v. Dumas - 53 F.3d 549 (2d Cir. 1995)

Rule:

An independent contractor is an employee and a hiring party an employer for purposes of the Copyright Act of 1909 if the work is made at the hiring party's instance and expense. The instance and expense test is met when the motivating factor in producing the work was the employer who induced the creation. In the work-for-hire context under the Copyright Act of 1909 Act, an essential element of the employer-employee relationship, is the right of the employer to direct and supervise the manner in which the writer performs his work. 

Facts:

Patrick Nagel is a freelance artist who provided Playboy Enterprises, Inc. and Special Editions, Ltd. (collectively "Playboy") with 285 works of art that appeared in its magazine from 1974 to 1984. Nagel’s widow, Jennifer Dumas, granted reproduction rights to third parties for all works that had previously appeared in Playboy's magazine. Playboy argued that Nagel had transferred the copyrights to the works by means of legend agreements on t Nagel’s paychecks, and alternatively, that it was the author of the works and the owner of the copyrights. The United States District Court for the Southern District of New York dismissed Playboy’s action for a declaratory judgment that Playboy owned copyrighted works of art and which entered judgment on a counterclaim for copyright infringement that was filed by defendants, Jennifer Dumas and her company, Jennifer Dumas, Inc.

Issue:

Did freelance artist Nagel hold all of the copyrights for all of the works of art he created that appeared in Playboy magazine from 1974 to 1984?

Answer:

No

Conclusion:

The United States Court of Appeals affirmed that part of the judgment as to the art work created before 1977 and vacated that part of the judgment as to the art work created after 1977. The Court held that the works created before 1977 were works intended to be for hire under the Copyright Act of 1909, and that absent proof to the contrary, Playboy was presumed to be the author. The works created between 1978 and 1979 were not works for hire because those paychecks did not meet the writing requirement under the 1976 Act. The case was remanded for further proceedings.

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