Who's the Boss in Copyright Disputes?

A SELDOM-PUBLICIZED minority group, free-lance artists, has won a major victory in the United States. As the result of a copyright case decided earlier this month by the US Supreme Court, these sometimes undervalued creative workers will have more control over their craft and perhaps greater leverage in the workplace.

Newspapers and magazines as well as other businesses are often highly dependent upon contract artists, and, up until now, these employers have held major control over so-called work-for-hire art. Although copyright law has usually given the creator of a portrait or a mural absolute right over it, the 1976 Copyright Act under certain circumstances awards the copyright to the person who commissions the work.

This may all change under Community for Creative Non-Violence v. Reid. James Earl Reid is a Baltimore sculptor who created a modern-day nativity display for the CCNV, a nonprofit organization devoted to the welfare of homeless people. In their decision, the justices unanimously ruled that Reid was not a CCNV employee and thus did not lose his copyright on his work.

The dispute between Reid and the homeless group centered around the meaning of ``employee'' in the context of a free-lance agreement.

The artist was commissioned to sculpt a black mother, father, and child depicted as a homeless family huddled together on a steam grate. The title of the work is ``Third World America.'' It carries the legend: ``and still there is no room at the inn.''

Reid and CCNV fell into controversy over the latter's plan for an extensive national tour of the sculpture to raise money for the homeless. Although the sculptor was committed to the cause and donated his services, he objected to the itinerary on the grounds that the materials were too delicate to withstand an ambitious tour.

CCNV asked Reid to turn over his work to them. He objected and filed an application for copyright registration in his own name. CCNV then took the sculptor to court.

The murkiness of the law in this area was indicated by conflicting lower judicial rulings. A district tribunal sided with the homeless group, ruling that Reid was an employee of CCNV and that the sculpture was a ``work made for hire'' under the Copyright Act. Hence, CCNV owned the copyright.

Not so, said the Court of Appeals for the District of Columbia Circuit, reversing the lower court and ruling that Reid was not an employee, but a ``fine artist, [who] had donated his services, worked in his own studio, and personally engaged assistants when he needed them.''

The appeals court, however, did not determine whether Reid was the sole owner of the ``Third World America'' copyright and remanded the case to decide whether the sculpture qualified as a joint work, since CCNV provided support materials. Both parties sought Supreme Court review.

Associate Justice Thurgood Marshall, writing for the court, concluded that in these circumstances the copyright vests in the work's creator. He held that Congress had meant the law to embody the common-law rules of ``agency'' that define conventional employer-employee relationships.

Under this test, most free-lance artists - including Reid - are not seen in the ``work for hire'' context and retain the right to copyright their work, the court held.

The lower courts will still have to work out aspects of the Reid-CCNV controversy, including whether the intent of their agreement was to make the parties co-owners of the project.

The Supreme Court ruling, however, has broad ramifications for the advertising and publishing industries, and, of course, for free-lance artists. Businesses will still be able to write specific agreements with contract workers regarding ownership of their creative products. In many cases, however, the artist will have more control over his own work, its use, and copyright.

Vive the free-lancer!