Thursday, March 8, 2012

Can They Do That to My Artwork?

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Dear Rich: For almost a decade I have been doing creative and artistic work for a non-profit organization. (I have been doing this for free because I support the charity’s work and ideals.) My work is later sold to the public and has been, for many years, the largest single fundraising project of the organization. Recently, however, when my current project was almost (but not quite) ready to go out to the printer, someone else in the organization volunteered to error-check and offer creative suggestions about my unfinished work. Then, entirely without my knowledge or permission, she took my project to our organization’s Board of Directors who decided, again without my knowledge or permission, to extensively edit my work and then send it out for printing. From my point of view they “butchered” my work, but the legal question is whether they had the legal right to make unauthorized changes to my work and then to publish it without my permission. Now, yes, they still put my name on it as the author and artist, but I was embarrassed to have my name associated with the finished product after all the changes they made. Let me also point out that in all the years I have done this, no one has ever asked for any changes of any kind to my finished work, so our relationship was such that my work was published exactly as I submitted it. I understood that the basic paradigm of intellectual property rights is that original and creative works belong to their creator. Since I never transferred possession or ownership to the organization, I feel that my work has been stolen. Do I have a case? Wow, your question took us so long to read that we started daydreaming about raccoons. We're not sure why ... maybe it's got something to do with those nocturnal muddy paw prints we've been seeing around during the day. (Click on the little culprit on the right.)
Right, you had a question. Actually, you have two questions: (1) Can they modify your work without your permission, and (2) Who is the copyright owner of the work? The first question is tied to the second because if you owned the copyright, any unauthorized modifications would be considered an infringement (unless excused as a fair use).  As to the second question -- you own copyright unless the work is considered a work made for hire (and we think the Supreme Court addressed your main question).
CCNV v. Reid. In this 1989 case, the Community for Creative Non-Violence ("CCNV"), a nonprofit dedicated to eliminating homelessness, decided to create a float for the Washington D.C. Christmas Pageant. One director conceived of the idea of a statue as an analogy to the nativity scene with a homeless family huddled over a steam grate. The CCNV hired a sculptor named Reid. After compromising on the material to be used, Reid prepared a sketch. The CCNV requested some changes. Reid agreed to create the statue and received a $3,000 advance. The CCNV constructed the steam grate portion of the exhibit. Reid delivered the statue and was paid a final payment of $15,000. After the pageant and a month on display, the CCNV wanted to take the statue to other cities. Reid, who now had possession of the sculpture, objected claiming that the statue was too fragile. Reid wanted to take the statue on a less demanding exhibit tour. Both parties claimed copyright in the work. The Supreme Court held that the sculpture was not a work made for hire because Reid was not an employee, as defined under law.
Proving you're an IC. To determine employee or independent contractor status the Supreme Court stated that the following factors are weighed:
  •  the skill required in the particular occupation; 
  •  whether the employer or the worker supplies the instrumentalities and tools of the trade; 
  •  the location of the work; 
  •  the length of time for which the person is employed; 
  •  whether the hiring party has the right to assign additional work projects to the hired party; 
  •  the extent of the hired party's discretion over when and how long to work; 
  •  the method of payment; 
  •  the hired party's role in hiring and paying assistants; 
  •  whether the work is part of the regular business of the hiring party; 
  •  whether the hiring party is in business; 
  •  the provision of employee benefits; and 
  •  the tax treatment of the hired party. 
Where does this leave you? We have a feeling that you fulfill IC status because you were not commissioned to create the work, apparently you were not paid for the work, and unlike the CCNV case, you conceived of the subject matter of the artwork. That would put the copyright under your ownership. Any unauthorized modifications made subsequently by the nonprofit would be an infringement. The nonprofit may dispute this and argue that you consented to the modifications and permitted the publication of the modified work under your name. These are all matters of factual proof -- for example, the courts would look at the emails exchanged or the documents that were executed.
Joint authorship? In the CCNV case, the CCNV did some supervision of Reid and contributed a portion of the work (the steam grate.)  A lower court later determined that the sculpture was a work of joint authorship -- that is, the parties had the intention that their contributions be merged into inseparable or interdependent parts of a unitary whole. We don't think you will have the same outcome, especially if you conceived of the artwork and prepared the initial work by yourself. However, because you're considering doing battle with the nonprofit, you should consult a copyright attorney in your area to get an opinion from someone who's privy to the work and the facts.