Copyright Work-for-Hire Presumption in favor of Commissioning Party

In a series of cases decided over more than sixty years, this Court has considered the status of commissioned works under the 1909 Act, with respect to both the original copyright term and the renewal term. In the process, we have developed what the Fifth Circuit describes as "an almost irrebut[t]able presumption that any person who paid another to create a copyrightable work was the statutory `author' under the `work for hire' doctrine." Easter Seal Society for Crippled Children and Adults of Louisiana, Inc. v. Playboy Enterprises, 815 F.2d 323, 327 (5th Cir.1987) (reviewing relevant Second Circuit cases).

Our Court first recognized a "presumption" in favor of a commissioning party in 1939 in Yardley v. Houghton Mifflin Co., 108 F.2d 28 (2d Cir.1939), a case involving an artist who had been commissioned by the City of New York to paint a mural. The artist had died before the expiration of the copyright's original term, and his sister claimed to own a copyright for the original term by virtue of an assignment from her brother's executor. In addition, the sister had filed for and obtained a registration for the copyright's renewal term.

Focusing on the original term, we ruled that, although the contract commissioning the artist's work was silent as to which party would hold the copyright, and although the artist had included a copyright notice in his favor on the painting, this term belonged to the City because it had commissioned the artist to paint the mural. Id. at 30-32.

In so holding, we adopted a "presumption" that the commissioning party "desires to control the publication of copies" of the commissioned work and that the artist "consents" to such control in the absence of a contract to the contrary. Id. at 31.

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