Where that intent cannot be determined, the presumption of copyright ownership runs in favor of the employer. Ibid. For example, in Yardley v. Houghton Mifflin Co., 108 F.2d 28 (2d Cir.), cert. denied, 309 U.S. 686, 60 S.Ct. 891, 84 L.Ed. 1029 (1940), a painter was commissioned to create a mural for the walls of a public school. We held:
As for commissioned works, the courts generally presumed that the commissioned party had impliedly agreed to convey the copyright, along with the work itself, to the hiring party. See, e. g., Shapiro, Bernstein Co. v. Jerry Vogel Music Co., 221 F.2d 569, 570, rev'd, 223 F.2d 252 (CA2 1955); Yardley v. Houghton Mifflin Co., 108 F.2d 28, 31 (CA2 1939), cert. denied, 309 U.S. 686 (1940).The concept of works made for hire first arose in controversies over copyright ownership involving works produced by persons whom all parties agreed were employees.
The burden of proof is on the independent contractor to demonstrate by a preponderance of the evidence that such a contrary agreement was reached. Real Estate Data, Inc. v. Sidwell Co., 809 F.2d 366, 371 (7th Cir. 1987); Yardley v. Houghton Mifflin Co., 108 F.2d 28, 31 (2d Cir. 1939), cert. denied, 309 U.S. 686, 60 S.Ct. 891, 84 L.Ed. 1029 (1940). A. Were the Works "Made For Hire"?
The court developed a presumption that the parties intended the buyer to hold the copyrights in the photographs. In Yardley v. Houghton Mifflin Co., 108 F.2d 28 (2d Cir. 1939), cert. denied, 309 U.S. 686, 60 S.Ct. 891, 84 L.Ed. 1029 (1940), the court applied this presumption to a commissioned mural painted on a building. It stated the prior rule at a new level of generality:
In the absence of evidence to the contrary, ownership of the copyright would, accordingly, be presumed to lie with the "person at whose instance and expense the work [was] done." Brattleboro Publishing Co. v. Winmill Publishing Corp., 369 F.2d 565, 567 (2d Cir. 1966); see Yardley v. Houghton Mifflin Co., 108 F.2d 28 (2d Cir. 1939), cert. denied, 309 U.S. 686, 60 S.Ct. 891, 84 L.Ed. 1029 (1940). Pursuant to the new statute, the creator of a "work for hire" has no ownership interest in a copyright.
The "occurrence" is the establishing event. United States F. G. Co. v. American Ins. Co., (Ct.App. 1976) 169 Ind. App. 1, 345 N.E.2d 267. We agree with the dissenting opinion of Clark, J., in Export S.S. Corp. v. American Ins. Co., 2 Cir., 1939, 106 F.2d 9, 12, cert. denied, 309 U.S. 686, 60 S.Ct. 809, 84 L.Ed. 1029, rather than the majority view. At the risk of appearing pedantic, the insurance is against an occurrence, not a reoccurrence, particularly a deliberate one.
We found this evidence insufficient to rebut the presumption of ownership in the employer even before the assignment. Moreover, we cited as authority Yardley v. Houghton Mifflin Co., 108 F.2d 28 (2d Cir. 1939), cert. denied, 309 U.S. 686, 60 S.Ct. 891, 84 L.Ed. 1029 (1940), in which the Second Circuit suggested that extrinsic evidence is permissible to rebut the presumption: If [the artist] is solicited by a patron to execute a commission for pay, the presumption should be indulged that the patron desires to control the publication of copies and that the artist consents that he may, unless by the terms of the contract, express or implicit, the artist has reserved the copyright to himself.
Scherr, supra; Bourne, supra. Actual exercise of that right is not controlling, and copyright is vested in the employer who has no intention of overseeing the detailed activity of any employee hired for the very purpose of producing the material. See Yardley v. Houghton Mifflin Co., 108 F.2d 28 (2 Cir. 1939), cert. denied, 309 U.S. 686, 60 S.Ct. 891, 84 L.Ed. 1029 (1940). In addition, the nature and amount of compensation or the absence of any payment for the work may be considered but are of minor importance.
Actual exercise of that right is not controlling, and copyright is vested in the employer who has no intention of overseeing the detailed activity of any employee hired for the very purpose of producing the material. See Yardley v. Houghton Mifflin Co., 108 F.2d 28 (2d Cir. 1939), cert. denied, 309 U.S. 686, 60 S.Ct. 891, 84 L.Ed. 1029 (1940). In addition, the nature and amount of compensation or the absence of any payment for the work may be considered but are of minor importance.
The purpose of the statute is not to be frustrated by conceptualistic formulations of the employment relationship. In Brattleboro Publishing Co., supra, this Court held that advertisements designed and printed by a newspaper, obviously at the "instance" of the advertiser, were done for hire. The Court expressly applied the statutory work for hire doctrine to the case of an independent contractor, 369 F.2d at 568, relying in part on Yardley v. Houghton Mifflin Co., 108 F.2d 28 (2d Cir. 1939), cert. denied, 309 U.S. 686, 60 S.Ct. 891, 84 L.Ed. 1029 (1940), where it was held that one who commissions an artist to paint a mural owns all rights to its reproduction. See also Dielman v. White, 102 F. 892 (C.C.D.Mass.