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Is that actually true, absent a contract or agreement that you get the copyright along with the commission? I would think the artist gets it by "default" unless

Is that actually true, absent a contract or agreement that you get the copyright along with the commission? I would think the artist gets it by "default" unless you're also paying for the rights or something?

jprete 3y ago
IANAL, but as far as I know, the artist gets it by default in absence of a contract that specifically assigns it to the other party. It’s possible there are special rules around salaried employees but even then I’d expect almost all busineesses to have a specific condition of employment that the employee’s works are works-for-hire.
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mminer237 3y ago
https://www.law.cornell.edu/uscode/text/17/101#:~:text=a%20%E2%80%9Cwork%20made%20for%20hire%E2%80%9D%20is%E2%80%94 https://www.law.cornell.edu/uscode/text/17/101#:~:text=a%20%... If an employee makes something at work, the employer is legally the creator of it. If someone contracts someone else to make something for him, the copyright in the work vests in the hiring party essentially when it's part of a larger work and the contract says it's a work for hire. A one-off commission on its own does vest in the artist. (Disclaimer: I'm a lawyer, but I'm not your lawyer.)
jasrys 3y ago
It depends, but yes, usually. Post-1978, the author of a work is also the copyright owner as soon as the work is fixed in a "tangible medium of expression" (written down, recorded, dictated, etc.). The exception to this is when the work was created as a "work for hire" (WFH) [1] for an employer. The rules around what constitutes a bonafide WFH are governed by agency law in the US. The primary court case in this area is The Community For Creative Non-Violence v. Reid which outlines a fairly high bar for a work to be considered a true WFH (it asks questions like: did you go to an office where the employer told you what to do and how to create it, did the employer provide you materials, did the employer pay you as a salaried employee rather than a contractor, how were you treated tax-wise and benefits-wise, etc.). That said, as the copyright owner at the moment of fixation, you can absolutely assign that copyright in writing to anyone you'd like. So functionally, there is usually a backup clause saying something like: "this is a work for hire for us, but, in the event it's deemed not a work for hire, you hereby assign the copyright to us anyway." [1] https://copyright.gov/circs/circ30.pdf https://copyright.gov/circs/circ30.pdf [2] https://en.wikipedia.org/wiki/Community_for_Creative_Non-Violence_v._Reid https://en.wikipedia.org/wiki/Community_for_Creative_Non-Vio...

jprete 3y ago

IANAL, but as far as I know, the artist gets it by default in absence of a contract that specifically assigns it to the other party. It’s possible there are special rules around salaried employees but even then I’d expect almost all busineesses to have a specific condition of employment that the employee’s works are works-for-hire.

deleted 3y ago
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mminer237 3y ago

https://www.law.cornell.edu/uscode/text/17/101#:~:text=a%20%E2%80%9Cwork%20made%20for%20hire%E2%80%9D%20is%E2%80%94 https://www.law.cornell.edu/uscode/text/17/101#:~:text=a%20%... If an employee makes something at work, the employer is legally the creator of it. If someone contracts someone else to make something for him, the copyright in the work vests in the hiring party essentially when it's part of a larger work and the contract says it's a work for hire. A one-off commission on its own does vest in the artist. (Disclaimer: I'm a lawyer, but I'm not your lawyer.)

jasrys 3y ago

It depends, but yes, usually. Post-1978, the author of a work is also the copyright owner as soon as the work is fixed in a "tangible medium of expression" (written down, recorded, dictated, etc.). The exception to this is when the work was created as a "work for hire" (WFH) [1] for an employer. The rules around what constitutes a bonafide WFH are governed by agency law in the US. The primary court case in this area is The Community For Creative Non-Violence v. Reid which outlines a fairly high bar for a work to be considered a true WFH (it asks questions like: did you go to an office where the employer told you what to do and how to create it, did the employer provide you materials, did the employer pay you as a salaried employee rather than a contractor, how were you treated tax-wise and benefits-wise, etc.). That said, as the copyright owner at the moment of fixation, you can absolutely assign that copyright in writing to anyone you'd like. So functionally, there is usually a backup clause saying something like: "this is a work for hire for us, but, in the event it's deemed not a work for hire, you hereby assign the copyright to us anyway." [1] https://copyright.gov/circs/circ30.pdf https://copyright.gov/circs/circ30.pdf [2] https://en.wikipedia.org/wiki/Community_for_Creative_Non-Violence_v._Reid https://en.wikipedia.org/wiki/Community_for_Creative_Non-Vio...