Thing 000798 (Third World America)

In September 1985 Community for Creative Non-Violence (CCNV), a Washington based non-profit unincorporated association for homeless people, proposed a display for the Christmastime Pageant of Peace on the Ellipse in Washington D.C. Mitch Snyder and fellow CCNV members developed a proposal for a modern Nativity scene in which, instead of the traditional Holy Family, the figures and the infant would appear as contemporary homeless people huddled on a street side steam grate. The proposed figures were life-size and the grate positioned on top of a base emitting steam with a text that reads: “and still there is no room at the inn.” The title for the work Snyder chose was Third World America. CCNV did not have a large budget. They commissioned a sculpture by James Earl Reid, a Baltimore sculptor. Reid suggested to make the sculpture out of a material known as Design Cast 62, a synthetic substance which cost substantially less than bronze. Reid estimated the cost at not more than $15000, which didn’t include his services, which he offered to donate. On November 1st Reid sent CCNV a sketch of a proposed arrangement of the figures showing the family in a classic creche-like relationship to one another and CCNV paid Reid an advance of $3000. Throughout November and December Reid and his assistants worked on the figures for the sculpture, conferring from time to time with various CCNV members and making changes to the form and arrangement of the figures to accommodate CCNV’s requests. Between the construction of the armature and the final clay rendering various CCNV members visited Reid in his Baltimore studio on a number of occasions to check on his progress. In parallel CCNV ordered a cabinetmaker to construct the pedestal, obtained the special-effects equipment from a company in California and acquired the chemicals needed to make the steam for a total of approximately $8000. On December 24, 1985, Reid delivered the finished Third World America to the Ellipse himself. He received $3000, the final installment of the $15,000 total payment from Snyder. Beneath the title on the finished work, which appears in raised letters on the box in which the baby lies, Reid inscribed the letter “C”, encircled, and his name, to indicate his claim to a copyright for it.

Late January, 1986, CCNV members returned the statue to Reid’s studio in Baltimore to repair some minor damage done during its transport. In February, Snyder began making plans to take the statue on a tour of several cities and exhibit it at galleries to raise money for the homeless. Reid came to Washington, accompanied by a lawyer, to protest that the Design Cast 62 material was not strong enough to withstand the rigors of travel and to urge CCNV to have the statue cast in bronze for about $35000, or at least to have a master mold made for $5000. Snyder declined to fund these additional undertakings but invited Reid to do so at his own expense. Several weeks later Snyder called Reid to demand the return of the statue. Reid refused. On March 20, 1986, Reid filed a Certificate of Copyright Registration for in his name with the Copyright Office, Library of Congress. He announced plans for a more modest exhibition tour of his own for the statue. On May 21, 1986, Snyder filed a competing certificate of copyright registration in his name.

On June 2, 1986, CCNV brought an action against Reid. Snyder sought the return of the sculpture and a determination of who owns copyright of Third World America. On July 25, 1986, the district court granted a preliminary injunction ordering Reid to return the sculpture to CCNV. On February 9, 1987, the court case Community for Creative Non-Violence v. James Earl Reid took place at United States District Court of Columbia. Judge Thomas Penfield Jackson held:

The Copyright Act declares that [...] “[i]n the case of a work made for hire, the employer or other person for whom the work was prepared is considered the author ... [and] owns all of the rights comprised in the copyright” 1 unless otherwise expressly agreed in writing. [...] [I]n this case there is neither an agreement in writing between the parties as to ownership of the copyright in Third World America, nor a unilateral instrument in writing purporting to convey it. [...] [O]wnership of the copyright turns upon the identity of the statutory “author”, which, in turn, depends upon whether the statue is a “work made for hire”.

A “work made for hire” is defined, for purposes of this case, as “a work prepared by an employee within the scope of his or her employment...” 2 but for statutory copyright purposes generally, the employment relationship giving rise to a copyright is somewhat more expansive than the master-servant relationship found in the common law of agency. Under the Act one may be an employee “regardless of whether he is paid on the basis of a conventional periodic salary, on a piece work basis, on a fee or royalty basis, or even if [he works] as an accommodation with no compensation at all” 3. If the putative “employer” was either the “motivating factor” in the production of the work, or possessed the right to “direct and supervise” the manner in which the work was done, the copyright is his no matter the degree of creative license actually exercised by the artist-employee.

It is indisputable on this record that [...] CCNV was the motivating factor in the procreation of Third World America. Snyder and his colleagues not only conceived the idea of a contemporary Nativity scene to contrast with the national celebration of the season, they did so in starkly specific detail. They then engaged Reid to utilize his representational skills, rather than his original artistic vision, to execute it. And while much was undoubtedly left to his discretion in doing so, CCNV nevertheless directed enough of his effort to assure that, in the end, he had produced what they, not he, wanted, notwithstanding his creative instincts may have been in harmony with theirs. Finally, they paid in full for the work, making their final payment only when satisfied, upon delivery, that the statue did, indeed, convey the message they had intended for it.

Reid could have bargained with CCNV for the copyright but did not do so. [...] But in the absence of a writing to the contrary, the law leaves no doubt that Third World America is a work made for hire, and CCNV the exclusive owner of the copyright therein.

The court concluded that the copyright in and to that work of sculpture known as Third World America is vested exclusively in Mitch Snyder, trustee, for the use and benefit of the Community for Creative Non-Violence and that the Certificate of Copyright Registration in the name of James Earl Reid is canceled.

Reid appealed that decision. On May 20, 1988, the court case Community for Creative Non-Violence v. James Earl Reid took place at the Court of Appeals. Judge Ruth Bader Ginsburg held:

The 1976 Act prescribes that copyright ownership “vests initially in the author or authors of the work”, and that “authors of a joint work are co-owners of copyright in the work” 4. 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 otherwise in a written instrument signed by them, owns all of the rights comprised in the copyright 5. “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 [1] as a contribution to a collective work, [2] as a part of a motion picture or other audiovisual work, [3] as a translation, [4] as a supplementary work, [5] as a compilation, [6] as an instructional text, [7] as a test, [8] as answer material for a test, or [9] 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” 6. Is Reid an “author” of the sculpture [...] or is CCNV the only party considered the “author”?

In the case before us, we note that the district court, while [...] examining with care CCNV’s interactions with Reid, used language harking back to the “payor presumed to control” approach that evolved under the 1909 Act. [...] [But there are] three distinct interpretations of the 1976 Act. [...] Section 101(2) applies to independent contractors. All works by independent contractors - “work[s] specially ordered or commissioned” - are not works for hire unless the work comes within the nine narrow statutory categories and parties agree in a signed instrument. Section 101(2) is really statutory permission for certain kinds of independent contractors to give “authorship” to their buyers. [...] [W]e hold that a copyrightable work of an independent contractor cannot be a work made for hire under the current Act unless that work falls within one of the specific categories enumerated in s 101(2) and “the parties expressly agree in a written instrument signed by them that the work shall be considered a work made for hire” 7. It follows from this that Third World America does not qualify as a work made for hire, for Reid was an independent contractor and not an employee of CCNV within the rules of agency law; furthermore, sculpture surely is not a category of commissioned work enumerated in s 101(2), and no written agreement existed between CCNV and Reid.

But neither does the existing record bear out Reid’s assertion that he is the exclusive owner of copyright in the work. The facts thus far found by the district court, however, indicate that Third World America may indeed qualify as a joint work. [...] Reid asserts no large role in the creation of the special effects pedestal designed to simulate a grate emitting steam. CCNV hired a cabinetmaker to construct the steam grate pedestal portion of the sculpture and obtained the special-effects equipment from sources in Hollywood. Thus Reid cannot possibly have solely “authored” the steam grate portion of the sculpture.

The 1976 Act defines a joint work as one “prepared by two or more authors with the intention that their contributions be merged into inseparable or interdependent parts of a unitary whole” 8. Third World America, on the record thus far made, fits that description. Reid constructed the figures so that they would huddle on, and could be affixed to, the steam grate pedestal; and once the whole was composed, it was not disassembled.

[W]e do not overlook the “idea/expression dichotomy”; as stated in the 1976 Act, “[i]n no case does copyright protection for an original work of authorship extend to any idea ... regardless of the form in which it is ... embodied in such work” 9 [...] Third World America, however, was more than CCNV’s abstract idea. Following CCNV’s original conception of the sculpture, Snyder and other CCNV members, the district court found, monitored the progress of the work, not simply to approve Reid’s embodiment of their idea, but to guide his expression and coordinate with his effort CCNV’s construction of the steam grate pedestal. [...] [T]his case [...] might qualify as a textbook example of a jointly-authored work.

Reid observes that CCNV engaged others to construct the pedestal and supply its components; he asserts that “the Court has insufficient information before it to determine whether CCNV is in fact the ’author’ of the base”. [...] The possibility of joint authorship was not considered by the district court, and the record on contributions of participants other than Reid and CCNV is limited. We do know, not only that CCNV engaged others, but that Reid himself was “assisted at various times by a dozen different people, all paid by him, from funds .... provided by CCNV”. It may well be that all other participants in the composition of “Third World America” were either (1) employees of Reid or CCNV within the applicable rules of agency law. [...] We are not prepared to rule definitively on this issue, however. We therefore refer the matter to the district court with instructions to determine if there are any other parties who might qualify as “Third World America” authors.

The court reversed the first decision and concluded that the sculpture did not qualify as work made for hire, and remanded for further consideration whether the sculpture could qualify as a joint work. CCNV appealed the decision.

On June 5, 1989, the court case Community for Creative Non-Violence v. James Earl Reid took place at Supreme Court of the United States. Justice J. Marshall held:

Reid engages in a skilled occupation; supplied his own tools; worked in Baltimore without daily supervision from Washington; was retained for a relatively short period of time; had absolute freedom to decide when and how long to work in order to meet his deadline; and had total discretion in hiring and paying assistants. [...] The language and structure of s 101 of the Act do not support either the right to control the product or the actual control approaches. The structure of s 101 indicates that a work for hire can arise through one of two mutually exclusive means, one for employees and one for independent contractors. [...] Transforming a commissioned work into a work by an employee on the basis of the hiring party’s right to control, or actual control of, the work is inconsistent with the language, structure, and legislative history of the work for hire provisions. To determine whether a work is for hire under the Act, a court first should ascertain, using principles of general common law of agency, whether the work was prepared by an employee or an independent contractor. After making this determination, the court can apply the appropriate subsection of s 101. [...] Examining the circumstances of this case in light of these factors, we agree with the Court of Appeals that Reid was not an employee of CCNV but an independent contractor.

However, as the Court of Appeals made clear, CCNV nevertheless may be a joint author of the sculpture if, on remand, the District Court determines that CCNV and Reid prepared the work “with the intention that their contributions be merged into inseparable or interdependent parts of a unitary whole”. In that case, CCNV and Reid would be co-owners of the copyright in the work.

The court affirm the judgment of the Court of Appeals for the District of Columbia Circuit and concluded that the sculpture did not qualify as work made for hire and could qualify as a joint work.

  1. 17 U.S.C. s 201(b)

  2. 17 U.S.C. s 101

  3. Nimmer on Copyright, s 5:03[B][1][a] (1985)

  4. 17 U.S.C. s 201(a)

  5. 17 U.S.C. s 201(b)

  6. 17 U.S.C. s 101

  7. 17 U.S.C. s 101(2)

  8. 17 U.S.C. s 101

  9. U.S.C. s 102(b)