Legal Question in Intellectual Property in Missouri

I worked at a saddle a shop on contract labor and I did leather carving on horse saddles. Some of my carvings were original works I created. I have not worked for this saddle shop for a few years and I have noticed that on their website they are offering my works as options on saddles to their customers. I wanted to know if that is legal for them to do that. When I worked for them I did my taxes under Gwendolen's Custom Leather and I'm still in business today.

Any comments would be great.

Thanks

Gwendolen Berry


Asked on 12/07/11, 7:25 pm

1 Answer from Attorneys

John Mitchell Interaction Law

Gwendolyn,

This sounds like a very satisfying profession! From your description, it looks to me like something you should speak about with a copyright lawyer. What you have pinpointed is a likely dispute over whether your work for the saddle shop was a "work made for hire," in which case the saddle shop would own the copyright. But if, as you indicate, you were not an employee but an independent contractor, then the terms of your written contract should be consulted. Quoting from 17 U.S.C. § 101 (Definitions):

A “work made for hire” is—

(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. For the purpose of the foregoing sentence, a “supplementary work” is a work prepared for publication as a secondary adjunct to a work by another author for the purpose of introducing, concluding, illustrating, explaining, revising, commenting upon, or assisting in the use of the other work, such as forewords, afterwords, pictorial illustrations, maps, charts, tables, editorial notes, musical arrangements, answer material for tests, bibliographies, appendixes, and indexes, and an “instructional text” is a literary, pictorial, or graphic work prepared for publication and with the purpose of use in systematic instructional activities.

In determining whether any work is eligible to be considered a work made for hire under paragraph (2), neither the amendment contained in section 1011(d) of the Intellectual Property and Communications Omnibus Reform Act of 1999, as enacted by section 1000(a)(9) of Public Law 106–113, nor the deletion of the words added by that amendment—

(A) shall be considered or otherwise given any legal significance, or

(B) shall be interpreted to indicate congressional approval or disapproval of, or acquiescence in, any judicial determination,

by the courts or the Copyright Office. Paragraph (2) shall be interpreted as if both section 2(a)(1) of the Work Made For Hire and Copyright Corrections Act of 2000 and section 1011(d) of the Intellectual Property and Communications Omnibus Reform Act of 1999, as enacted by section 1000(a)(9) of Public Law 106–113, were never enacted, and without regard to any inaction or awareness by the Congress at any time of any judicial determinations.

So, you can see that Congress attempted to be straightforward, and then got into the weeds referencing material that makes it more difficult for anyone to know what the law is. But if you were not an employee and the work-for-hire was not in writing, your attorney may find that you have a good case for ownership of the copyrights. Your attorney will also advise you to register your copyrights ($35 fee at www.copyright.gov) if you want any claim to be taken seriously.

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Answered on 12/07/11, 7:53 pm


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