U.S. Supreme Court Commun. for Non-Violence v. Reid, 490
U.S. 730 (1989) Commun. for Creative Non-Violence v.
Reid No. 88-293 Argued March 29, 1989 Decided June 5, 1989 490
U.S. 730 CERTIORARI TO THE UNITED STATES
COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA
CIRCUIT Syllabus In the fall of 1985, petitioners -- the Community for Creative
Non-Violence (CCNV), a Washington, D.C. organization dedicated to
eliminating homelessness, and one of its trustees -- entered into
an oral agreement with respondent Reid, a sculptor, to produce a
statue dramatizing the plight of the homeless for display at a 1985
Christmas pageant in Washington. While Reid worked on the statue in
his Baltimore, Md. studio, CCNV members visited him on a number of
occasions to check on his progress and to coordinate CCNV's
construction of the sculpture's base in accordance with the
parties' agreement. Reid accepted most of CCNV's suggestions and
directions as to the sculpture's configuration and appearance.
After the completed work was delivered to Washington, CCNV paid
Reid the final installment of the agreed-upon price, joined the
sculpture to its base, and displayed it. The parties, who had never
discussed copyright in the sculpture, then filed competing
copyright registration certificates. The District Court ruled for
CCNV in its subsequent suit seeking, inter alia, a
determination of copyright ownership, holding that the statue was a
"work made for hire" as defined in the Copyright Act of 1976, 17
U.S.C. § 101, and was therefore owned exclusively by CCNV under §
201(b), which vests copyright ownership of works for hire in the
employer or other person for whom the work is prepared, unless
there is a written agreement to the contrary. The Court of Appeals
reversed, holding that the sculpture was not a "work made for hire"
under the first subsection of the § 101 definition (hereinafter §
101(1)), since it was not "prepared by an employee within the scope
of his or her employment" in light of Reid's status as an
independent contractor under agency law. The court also ruled that
the statue did not satisfy the second subsection of the § 101
definition (hereinafter § 101(2)), since sculpture is not one of
the nine categories of "specially ordered or commissioned" works
enumerated therein, and the parties had not agreed in writing that
the sculpture would be a work for hire. However, the court remanded
for a determination whether the statue was jointly authored by CCNV
and Reid, such that they were co-owners of the copyright under §
201(a). Page 490 U. S. 731 Held: 1. To determine whether a work is a "work made for hire" within
the § 101 definition, a court should first apply general common law
of agency principles to ascertain whether the work was prepared by
an employee or an independent contractor, and, depending upon the
outcome, should then apply either § 101(1) or § 101(2). Although
the Act nowhere defines "employee," "employment," or related terms,
it must be inferred that Congress meant them in their settled,
common law sense, since nothing in the text of the work for hire
provisions indicates that those terms are used to describe anything
other than the conventional relation of employer and employee. On
the contrary, Congress' intent to incorporate agency law
definitions is suggested by § 101(1)'s use of the term "scope of
employment," a widely used agency law term of art. Moreover, the
general common law of agency must be relied on, rather than the law
of any particular State, since the Act is expressly intended to
create a federal law of uniform, nationwide application by broadly
preempting state statutory and common law copyright regulation.
Petitioners' argument that a work is "prepared by an employee
within the scope of his or her employment" whenever the hiring
party retains the right to control, or actually controls, the work
is inconsistent with the language and legislative history of the
work for hire provisions, and would distort the provisions'
structure, which views works by employees and commissioned works by
independent contractors as mutually exclusive entities. Pp. 490 U. S.
737 -751.

															2. The sculpture in question is not a "work made for hire"
within the meaning of § 101. Reid was an independent contractor,
rather than a § 101(1) "employee," since, although CCNV members
directed enough of the work to ensure that the statue met their
specifications, all other relevant circumstances weigh heavily
against finding an employment relationship. Reid engages in a
skilled occupation; supplied his own tools; worked in Baltimore
without daily supervision from Washington; was retained for a
relatively short period of time; had absolute freedom to decide
when and how long to work in order to meet his deadline; and had
total discretion in hiring and paying assistants. Moreover, CCNV
had no right to assign additional projects to Reid; paid him in a
manner in which independent contractors are often compensated; did
not engage regularly in the business of creating sculpture or, in
fact, in any business; and did not pay payroll or Social Security
taxes, provide any employee benefits, or contribute to unemployment
insurance or workers' compensation funds. Furthermore, as
petitioners concede, the work in question does not satisfy the
terms of § 101(2). Pp. 490 U. S.
751 -753.

															3. However, CCNV nevertheless may be a joint author of the
sculpture and, thus, a co-owner of the copyright under § 201(a),
if, on remand, Page 490 U. S. 732 the District Court determines that the parties prepared the work
with the intention that their contributions be merged into
inseparable or interdependent parts of a unitary whole. P. 490 U. S.
753 .

															270 U.S.App.D.C. 26, 846 F.2d 1485, affirmed.

															MARSHALL, J., delivered the opinion for a unanimous Court.

															JUSTICE MARSHALL delivered the opinion of the Court.

															In this case, an artist and the organization that hired him to
produce a sculpture contest the ownership of the copyright in that
work. To resolve this dispute, we must construe the "work made for
hire" provisions of the Copyright Act of 1976 (Act or 1976 Act), 17
U.S.C. §§ 101 and 201(b), and in particular, the provision in §
101, which defines as a "work made for hire" a "work prepared by an
employee within the scope of his or her employment" (hereinafter §
101(1)). Page 490 U. S. 733 I Petitioners are the Community for Creative Non-Violence (CCNV),
a nonprofit unincorporated association dedicated to eliminating
homelessness in America, and Mitch Snyder, a member and trustee of
CCNV. In the fall of 1985, CCNV decided to participate in the
annual Christmastime Pageant of Peace in Washington, D.C., by
sponsoring a display to dramatize the plight of the homeless. As
the District Court recounted:

															"Snyder and fellow CCNV members conceived the idea for the
nature of the display: a sculpture of a modern Nativity scene in
which, in lieu of the traditional Holy Family, the two adult
figures and the infant would appear as contemporary homeless people
huddled on a streetside steam grate. The family was to be black
(most of the homeless in Washington being black); the figures were
to be life-sized, and the steam grate would be positioned atop a
platform 'pedestal,' or base, within which special effects
equipment would be enclosed to emit simulated 'steam' through the
grid to swirl about the figures. They also settled upon a title for
the work -- 'Third World America' -- and a legend for the pedestal:
'and still there is no room at the inn.'" 652 F.
Supp. 1453 , 1454 (DC 1987).

															Snyder made inquiries to locate an artist to produce the
sculpture. He was referred to respondent James Earl Reid, a
Baltimore, Maryland, sculptor. In the course of two telephone
calls, Reid agreed to sculpt the three human figures. CCNV agreed
to make the steam grate and pedestal for the statue. Reid proposed
that the work be cast in bronze, at a total cost of approximately
$100,000 and taking six to eight months to complete. Snyder
rejected that proposal because CCNV did not have sufficient funds,
and because the statue had to be completed by December 12 to be
included in the pageant. Reid then suggested, and Snyder agreed,
that the Page 490 U. S. 734 sculpture would be made of a material known as "Design Cast 62,"
a synthetic substance that could meet CCNV's monetary and time
constraints, could be tinted to resemble bronze, and could
withstand the elements. The parties agreed that the project would
cost no more than $15,000, not including Reid's services, which he
offered to donate. The parties did not sign a written agreement.
Neither party mentioned copyright.

															After Reid received an advance of $3,000, he made several
sketches of figures in various poses. At Snyder's request, Reid
sent CCNV a sketch of a proposed sculpture showing the family in a
creche-like setting: the mother seated, cradling a baby in her lap;
the father standing behind her, bending over her shoulder to touch
the baby's foot. Reid testified that Snyder asked for the sketch to
use in raising funds for the sculpture. Snyder testified that it
was also for his approval. Reid sought a black family to serve as a
model for the sculpture. Upon Snyder's suggestion, Reid visited a
family living at CCNV's Washington shelter, but decided that only
their newly born child was a suitable model. While Reid was in
Washington, Snyder took him to see homeless people living on the
streets. Snyder pointed out that they tended to recline on steam
grates, rather than sit or stand, in order to warm their bodies.
From that time on, Reid's sketches contained only reclining
figures.

															Throughout November and the first two weeks of December, 1985,
Reid worked exclusively on the statue, assisted at various times by
a dozen different people who were paid with funds provided in
installments by CCNV. On a number of occasions, CCNV members
visited Reid to check on his progress and to coordinate CCNV's
construction of the base. CCNV rejected Reid's proposal to use
suitcases or shopping bags to hold the family's personal
belongings, insisting instead on a shopping cart. Reid and CCNV
members did not discuss copyright ownership on any of these
visits. Page 490 U. S. 735 On December 24, 1985, 12 days after the agreed-upon date, Reid
delivered the completed statue to Washington. There it was joined
to the steam grate and pedestal prepared by CCNV, and placed on
display near the site of the pageant. Snyder paid Reid the final
installment of the $15,000. The statue remained on display for a
month. In late January, 1986, CCNV members returned it to Reid's
studio in Baltimore for minor repairs. Several weeks later, Snyder
began making plans to take the statue on a tour of several cities
to raise money for the homeless. Reid objected, contending that the
Design Cast 62 material was not strong enough to withstand the
ambitious itinerary. He urged CCNV to cast the statue in bronze at
a cost of $35,000, or to create a master mold at a cost of $5,000.
Snyder declined to spend more of CCNV's money on the project.

															In March, 1986, Snyder asked Reid to return the sculpture. Reid
refused. He then filed a certificate of copyright registration for
"Third World America" in his name, and announced plans to take the
sculpture on a more modest tour than the one CCNV had proposed.
Snyder, acting in his capacity as CCNV's trustee, immediately filed
a competing certificate of copyright registration.

															Snyder and CCNV then commenced this action against Reid and his
photographer, Ronald Purtee, [ Footnote 1 ] seeking return of the sculpture and a
determination of copyright ownership. The District Court granted a
preliminary injunction, ordering the sculpture's return. After a
2-day bench trial, the District Court declared that "Third World
America" was a "work made for hire" under § 101 of the Copyright
Act, and that Snyder, as trustee for CCNV, was the exclusive owner
of the copyright in the sculpture. 652 F.
Supp. at 1457 . The court reasoned that Reid had been an
"employee" of CCNV within the meaning of § 101(1) because CCNV was
the motivating force in the statue's production. Snyder and Page 490 U. S. 736 other CCNV members, the court explained, "conceived the idea of
a contemporary Nativity scene to contrast with the national
celebration of the season," and "directed enough of [Reid's] effort
to assure that, in the end, he had produced what they, not he,
wanted." Id. at 1456.

															The Court of Appeals for the District of Columbia Circuit
reversed and remanded, holding that Reid owned the copyright
because "Third World America" was not a work for hire. 270
U.S.App.D.C. 26, 35, 846 F.2d 1485, 1494 (1988). Adopting what it
termed the "literal interpretation" of the Act as articulated by
the Fifth Circuit in Easter Seal Society for Crippled Children
and Adults of Louisiana, Inc. v. Playboy Enterprises, 815 F.2d
323, 329 (1987), cert. denied, 485 U.S. 981 (1988), the
court read § 101 as creating "a simple dichotomy in fact between
employees and independent contractors." 270 U.S.App.D.C. at 33, 846
F.2d at 1492. Because, under agency law, Reid was an independent
contractor, the court concluded that the work was not "prepared by
an employee" under § 101(1). Id. at 35, 846 F.2d at 1494.
Nor was the sculpture a "work made for hire" under the second
subsection of § 101 (hereinafter § 101(2)): sculpture is not one of
the nine categories of works enumerated in that subsection, and the
parties had not agreed in writing that the sculpture would be a
work for hire. Ibid. The court suggested that the
sculpture nevertheless may have been jointly authored by CCNV and
Reid, id. at 36, 846 F.2d at 1495, and remanded for a
determination whether the sculpture is indeed a joint work under
the Act, id. at 39-40, 846 F.2d at 1498-1499.

															We granted certiorari to resolve a conflict among the Courts of
Appeals over the proper construction of the "work made for hire"
provisions of the Act. [ Footnote
2 ] 488 U.S. 940 (1988). We now affirm. Page 490 U. S. 737 II A The Copyright Act of 1976 provides that copyright ownership
"vests initially in the author or authors of the work." 17 U.S.C. §
201(a). As a general rule, the author is the party who actually
creates the work, that is, the person who translates an idea into a
fixed, tangible expression entitled to copyright protection. § 102.
The Act carves out an important exception, however, for "works made
for hire." [ Footnote 3 ] If the
work is for hire, "the employer or other person for whom the work
was prepared is considered the author," and owns the copyright,
unless there is a written agreement to the contrary. § 201(b).
Classifying a work as "made for hire" determines not only the
initial ownership of its copyright, but also the copyright's
duration, § 302(c), and the owners' renewal rights, § 304(a),
termination rights, § 203(a), and right to import certain goods
bearing the copyright, § 601(b)(1). See 1 M. Nimmer &
D. Nimmer, Nimmer on Copyright § 5.03 [A], pp. 5-10 (1988). The
contours of the work for hire doctrine therefore carry profound
significance for freelance creators -- including artists, writers,
photographers, designers, composers, and computer programmers --
and for the publishing, advertising, music, and other industries
which commission their works. [ Footnote 4 ] Page 490 U. S. 738 Section 101 of the 1976 Act provides that a work is "for hire"
under two sets of circumstances:

															"(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. [ Footnote 5 ]"

															Petitioners do not claim that the statue satisfies the terms of
§ 101(2). Quite clearly, it does not. Sculpture does not fit within
any of the nine categories of "specially ordered or commissioned"
works enumerated in that subsection, and no written agreement
between the parties establishes "Third World America" as a work for
hire.

															The dispositive inquiry in this case therefore is whether "Third
World America" is "a work prepared by an employee within the scope
of his or her employment" under § 101(1). The Act does not define
these terms. In the absence of such guidance, four interpretations
have emerged. The first holds that a work is prepared by an
employee whenever the hiring party [ Footnote 6 ] retains the right to control the product. See Peregrine v. Lauren Corp., 601 F.
Supp. 828 , 829 (Colo.1985); Clarkstown v.
Reeder, 566 F.
Supp. 137 , 142 (SDNY 1983). Page 490 U. S. 739 Petitioners take this view. Brief for Petitioners 15; Tr. of
Oral. Arg. 12. A second, and closely related, view is that a work
is prepared by an employee under § 101(1) when the hiring party has
actually wielded control with respect to the creation of a
particular work. This approach was formulated by the Court of
Appeals for the Second Circuit, Aldon Accessories Ltd. v.
Spiegel, Inc., 738 F.2d 548, cert. denied, 469 U.S.
982 (1984), and adopted by the Fourth Circuit, Brunswick
Beacon, Inc. v. Schock-Hopchas Publishing Co., 810 F.2d 410
(1987), the Seventh Circuit, Evans Newton, Inc. v. Chicago
Systems Software, 793 F.2d 889, cert. denied, 479
U.S. 949 (1986), and, at times, by petitioners, Brief for
Petitioners 17. A third view is that the term "employee" within §
101(1) carries its common law agency law meaning. This view was
endorsed by the Fifth Circuit in Easter Seal Society for
Crippled Children and Adults of Louisiana, Inc. v. Playboy
Enterprises, 815 F.2d 323 (1987), and by the Court of Appeals
below. Finally, respondent and numerous amici curiae contend that the term "employee" only refers to "formal, salaried"
employees. See, e.g., Brief for Respondent 23-24; Brief
for Register of Copyrights as Amicus Curiae 7. The Court
of Appeals for the Ninth Circuit recently adopted this view. See Dumas v. Gommerman, 865 F.2d 1093 (1989).

															The starting point for our interpretation of a statute is always
its language. Consumer Product Safety Comm'n v. GTE Sylvania,
Inc., 447 U. S. 102 , 447 U. S. 108 (1980). The Act nowhere defines the terms "employee" or "scope of
employment." It is, however, well established that

															"[w]here Congress uses terms that have accumulated settled
meaning under . . . the common law, a court must infer, unless the
statute otherwise dictates, that Congress means to incorporate the
established meaning of these terms." NLRB v. Amax Coal Co., 453 U.
S. 322 , 453 U. S. 329 (1981); see also Perrin v. United States, 444 U. S.
37 , 444 U. S. 42 (1979). In the past, when Congress has used the term "employee"
without defining it, Page 490 U. S. 740 we have concluded that Congress intended to describe the
conventional master-servant relationship as understood by common
law agency doctrine. See, e.g., Kelley v. Southern Pacific
Co., 419 U. S. 318 , 419 U. S.
322 -323 (1974); Baker v. Texas & Pacific R.
Co., 359 U. S. 227 , 359 U. S. 228 (1959) (per curiam); Robinson v. Baltimore & Ohio R.
Co., 237 U. S. 84 , 237 U. S. 94 (1915). Nothing in the text of the work for hire provisions
indicates that Congress used the words "employee" and "employment"
to describe anything other than " the conventional relation of
employer and employe.'" Kelley, supra, at 419 U. S. 323 ,
quoting Robinson, supra, at 237 U. S. 94 ; compare NLRB v. Hearst Publications, Inc., 322 U.
S. 111 , 322 U. S.
124 -132 (1944) (rejecting agency law conception of
employee for purposes of the National Labor Relations Act where
structure and context of statute indicated broader definition). On
the contrary, Congress' intent to incorporate the agency law
definition is suggested by § 101(1)'s use of the term, "scope of
employment," a widely used term of art in agency law. See Restatement (Second) of Agency § 228 (1958) (hereinafter
Restatement). In past cases of statutory interpretation, when we have
concluded that Congress intended terms such as "employee,"
"employer," and "scope of employment" to be understood in light of
agency law, we have relied on the general common law of agency,
rather than on the law of any particular State, to give meaning to
these terms. See, e.g., Kelley, 419 U.S. at 419 U. S.
323 -324, and n. 5; id. at 419 U. S. 332 (Stewart, J., concurring in judgment); Ward v. Atlantic Coast
Line R. Co., 362 U. S. 396 , 362 U. S. 400 (1960); Baker, supra, at 359 U. S. 228 .
This practice reflects the fact that "federal statutes are
generally intended to have uniform nationwide application." Mississippi Band of Choctaw Indians v. Holyfield, ante at
43. Establishment of a federal rule of agency, rather than reliance
on state agency law, is particularly appropriate here, given the
Act's express objective of creating national, uniform copyright law
by broadly preempting state statutory and common law copyright
regulation. See 17 U.S.C. § 301(a). We thus Page 490 U. S. 741 agree with the Court of Appeals that the term "employee" should
be understood in light of the general common law of agency.

															In contrast, neither test proposed by petitioners is consistent
with the text of the Act. The exclusive focus of the right to
control the product test on the relationship between the hiring
party and the product clashes with the language of § 101(1), which
focuses on the relationship between the hired and hiring parties.
The right to control the product test also would distort the
meaning of the ensuing subsection, § 101(2). Section 101 plainly
creates two distinct ways in which a work can be deemed for hire:
one for works prepared by employees, the other for those specially
ordered or commissioned works which fall within one of the nine
enumerated categories and are the subject of a written agreement.
The right to control the product test ignores this dichotomy by
transforming into a work for hire under § 101(1) any "specially
ordered or commissioned" work that is subject to the supervision
and control of the hiring party. Because a party who hires a
"specially ordered or commissioned" work by definition has a right
to specify the characteristics of the product desired, at the time
the commission is accepted, and frequently until it is completed,
the right to control the product test would mean that many works
that could satisfy § 101(2) would already have been deemed works
for hire under § 101(1). Petitioners' interpretation is
particularly hard to square with § 101(2)'s enumeration of the nine
specific categories of specially ordered or commissioned works
eligible to be works for hire, e.g., "a contribution to a
collective work," "a part of a motion picture," and "answer
material for a test." The unifying feature of these works is that
they are usually prepared at the instance, direction, and risk of a
publisher or producer. [ Footnote
7 ] By their very nature, therefore, these types of Page 490 U. S. 742 works would be works by an employee under petitioners' right to
control the product test.

															The actual control test, articulated by the Second Circuit in Aldon Accessories, fares only marginally better when
measured against the language and structure of § 101. Under this
test, independent contractors who are so controlled and supervised
in the creation of a particular work are deemed "employees" under §
101(1). Thus, work for hire status under § 101(1) depends on a
hiring party's actual control of, rather than right to control, the product. Aldon Accessories, 738 F.2d at 552. Under the actual control test, a work for hire
could arise under § 101(2), but not under § 101(1), where a party
commissions, but does not actually control, a product which falls
into one of the nine enumerated categories. Nonetheless, we agree
with the Fifth Circuit Court of Appeals that "[t]here is simply no
way to milk the actual control' test of Aldon
Accessories from the language of the statute." Easter Seal
Society, 815 F.2d at 334. Section 101 clearly delineates
between works prepared by an employee and commissioned works. Sound
though other distinctions might be as a matter of copyright policy,
there is no statutory support for an additional dichotomy between
commissioned works that are actually controlled and supervised by
the hiring party and those that are not. We therefore conclude that the language and structure of § 101
of the Act do not support either the right to control the product
or the actual control approaches. [ Footnote 8 ] The structure of Page 490 U. S. 743 § 101 indicates that a work for hire can arise through one of
two mutually exclusive means, one for employees and one for
independent contractors, and ordinary canons of statutory
interpretation indicate that the classification of a particular
hired party should be made with reference to agency law.

															This reading of the undefined statutory terms finds considerable
support in the Act's legislative history. Cf. Diamond v.
Chakrabarty, 447 U. S. 303 , 447 U. S. 315 (1980). The Act, which almost completely revised existing copyright
law, was the product of two decades of negotiation by
representatives of creators and copyright-using industries,
supervised by the Copyright Office and, to a lesser extent, by
Congress. See Mills Music, Inc. v. Snyder, 469 U.
S. 153 , 469 U. S. 159 (1985); Litman, Copyright, Compromise, and Legislative History, 72
Cornell L.Rev. 857, 862 (1987). Despite the lengthy history of
negotiation and compromise which ultimately produced the Act, two
things remained constant. First, interested parties and Congress at
all times viewed works by employees and commissioned works by
independent contractors as separate entities. Second, in using the
term "employee," the parties and Congress meant to refer to a hired
party in a conventional employment relationship. These factors
militate in favor of the reading we have found appropriate.

															In 1955, when Congress decided to overhaul copyright law, the
existing work for hire provision was § 62 of the 1909 Copyright
Act, 17 U.S.C. § 26 (1976 ed.) (1909 Act). It provided that "the
word author' shall include an employer in Page 490 U. S.
744 the case of works made for hire." [ Footnote 9 ] Because the 1909 Act did not define
"employer" or "works made for hire," the task of shaping these
terms fell to the courts. They concluded that the work for hire
doctrine codified in § 62 referred only to works made by employees
in the regular course of their employment. As for commissioned
works, the courts generally presumed that the commissioned party
had impliedly agreed to convey the copyright, along with the work
itself, to the hiring party. See, e.g., Shapiro, Bernstein
& Co. v. Jerry Vogel Music Co., 221 F.2d 569, 570, aff'd, 223 F.2d 252 (CA2 1955); Yardley v. Houghton
Mifflin Co., 108 F.2d 28, 31 (CA2 1939), cert.
denied, 309 U.S. 686 (1940). [ Footnote 10 ] In 1961, the Copyright Office's first legislative proposal
retained the distinction between works by employees and works by
independent contractors. See Report of the Register of
Copyrights on the General Revision of the U.S. Copyright Law, 87th
Cong., 1st Sess., Copyright Law Revision 86-87 (H. Judiciary Comm.
Print 1961). After numerous meetings with representatives of the
affected parties, the Copyright Office issued a preliminary draft
bill in 1963. Adopting the Register's recommendation, it defined
"work Page 490 U. S. 745 made for hire" as

															"a work prepared by an employee within the scope of the duties
of his employment, but not including a work made on special order
or commission."

															Preliminary Draft for Revised U.S. Copyright Law and Discussions
and Comments on the Draft, 88th Cong., 2d Sess., Copyright Law
Revision, Part 3, p. 15, n. 11 (H. Judiciary Comm. Print 1964)
(hereinafter Preliminary Draft).

															In response to objections by book publishers that the
preliminary draft bill limited the work for hire doctrine to
"employees," [ Footnote 11 ]
the 1964 revision bill expanded the scope of the work for hire
classification to reach, for the first time, commissioned works.
The bill's language, proposed initially by representatives of the
publishing industry, retained the definition of work for hire
insofar as it referred to "employees," but added a separate clause
covering commissioned works, without regard to the subject matter,
"if the parties so agree in writing." S. 3008, H.R. 11947, H.R.
12354, 88th Cong., 2d Sess., § 54 (1964), reproduced in 1964
Revision Bill with Discussions and Comments, 89th Cong., 1st Sess.,
Copyright Law Revision, pt. 5, p. 31 (H.R. Judiciary Comm. Print
1965). Those representing authors objected that the added provision
would allow publishers to use their superior bargaining position to
force authors to sign work for hire agreements, Page 490 U. S. 746 thereby relinquishing all copyright rights as a condition of
getting their books published. See Supplementary Report,
at 67.

															In 1965, the competing interests reached an historic compromise,
which was embodied in a joint memorandum submitted to Congress and
the Copyright Office, [ Footnote
12 ] incorporated into the 1965 revision bill, and ultimately
enacted in the same form and nearly the same terms 11 years later,
as § 101 of the 1976 Act. The compromise retained as subsection (1)
the language referring to "a work prepared by an employee within
the scope of his employment." However, in exchange for concessions
from publishers on provisions relating to the termination of
transfer rights, the authors consented to a second subsection which
classified four categories of commissioned works as works for hire
if the parties expressly so agreed in writing: works for use "as a
contribution to a collective work, as a part of a motion picture,
as a translation, or as supplementary work." S. 1006, H.R. 4347,
H.R. 5680, H.R. 6835, 89th Cong., 1st Sess., § 101 (1965). The
interested parties selected these categories because they concluded
that these commissioned works, although not prepared by employees,
and thus not covered by the first subsection, nevertheless should
be treated as works for hire because they were ordinarily prepared
"at the instance, direction, and risk of a publisher or producer."
Supplementary Report, at 67. The Supplementary Report emphasized
that only the "four special cases specifically mentioned" could
qualify as works made for hire; "[o]ther works made on special
order or commission would not come within the definition." Id. at 67-68. Page 490 U. S. 747 In 1966, the House Committee on the Judiciary endorsed this
compromise in the first legislative report on the revision bills. See H.R.Rep. No. 2237, 89th Cong., 2d Sess., 114, 116
(1966). Retaining the distinction between works by employees and
commissioned works, the House Committee focused instead on

															"how to draw a statutory line between those works written on
special order or commission that should be considered as works made
for hire, and those that should not." Id. at 115. The House Committee added four other
enumerated categories of commissioned works that could be treated
as works for hire: compilations, instructional texts, tests, and
atlases. Id. at 116. With the single addition of "answer
material for a test," the 1976 Act, as enacted, contained the same
definition of works made for hire as did the 1966 revision bill,
and had the same structure and nearly the same terms as the 1966
bill. [ Footnote 13 ] Indeed,
much of the language of the 1976 House and Senate Reports was
borrowed from the Reports accompanying the earlier drafts. See,
e.g., H.R.Rep. No. 94-1476, p. 121 (1976); S.Rep. No. 94-473,
p. 105 (1975).

															Thus, the legislative history of the Act is significant for
several reasons. First, the enactment of the 1965 compromise with
only minor modifications demonstrates that Congress intended to
provide two mutually exclusive ways for works to acquire work for
hire status: one for employees and Page 490 U. S. 748 the other for independent contractors. Second, the legislative
history underscores the clear import of the statutory language:
only enumerated categories of commissioned works may be accorded
work for hire status. The hiring party's right to control the
product simply is not determinative. See Note, The
Creative Commissioner: Commissioned Works Under the Copyright Act
of 1976, 62 N.Y.U.L.Rev. 373, 388 (1987). Indeed, importing a test
based on a hiring party's right to control, or actual control of, a
product would unravel the " carefully worked-out compromise
aimed at balancing legitimate interests on both sides.'" H.R.Rep.
No. 2237, supra, at 114, quoting Supplemental Report, at
66. [ Footnote 14 ] We do not find convincing petitioners' contrary interpretation
of the history of the Act. They contend that Congress, in enacting
the Act, meant to incorporate a line of cases decided under the
1909 Act holding that an employment relationship exists sufficient
to give the hiring party copyright ownership whenever that party
has the right to control or supervise the artist's work. See,
e.g., Siegel v. National Periodical Publications, Inc., 508
F.2d 909, 914 (CA2 1974); Picture Music, Inc. v. Bourne,
Inc., 457 F.2d 1213, 1216 (CA2), cert. denied, 409
U.S. 997 (1972); Scherr v. Universal Match Corp., 417 F.2d
497, 500 (CA2 1969), cert. denied, 397 U.S. 936 (1970); Brattleboro Publishing Co. v. Winmill Publishing Corp., 369 F.2d 565, 567-568 (CA2 1966). In support of this position,
petitioners note:

															"Nowhere in the 1976 Act or in the Act's legislative history
does Congress state that it intended to jettison the control
standard or otherwise to reject the pre-Act judicial approach to
identifying a Page 490 U. S. 749 work for hire employment relationship."

															Brief for Petitioners 20, citing Aldon Accessories, 738
F.2d at 552.

															We are unpersuaded. Ordinarily, "Congress' silence is just that
-- silence." Alaska Airlines, Inc. v. Brock, 480 U.
S. 678 , 480 U. S. 686 (1987). Petitioners' reliance on legislative silence is
particularly misplaced here, because the text and structure of §
101 counsel otherwise. See Bourjaily v. United States, 483 U. S. 171 , 483 U. S. 178 (1987); Harrison v. PPG Industries, Inc., 446 U.
S. 578 , 446 U. S. 592 (1980). [ Footnote 15 ]
Furthermore, the structure of the work for hire provisions was
fully developed in 1965, and the text was agreed upon in
essentially final form by 1966. At that time, however, the courts
had applied the work for hire doctrine under the 1909 Act
exclusively to traditional employees. Indeed, it was not until
after the 1965 compromise was forged and adopted by Congress
[ Footnote 16 ] that a federal
court for the first time applied the work for hire doctrine to
commissioned works. See, e.g., Brattleboro Publishing Co.,
supra, at 567-568. Congress certainly could not have
"jettisoned" a line of cases that had not yet been decided.

															Finally, petitioners' construction of the work for hire
provisions would impede Congress' paramount goal in revising the
1976 Act of enhancing predictability and certainty of copyright
ownership. See H.R.Rep. No. 94-1476, supra, at
129. In a "copyright marketplace," the parties negotiate with an
expectation that one of them will own the copyright in the
completed work. Dumas, 865 F.2d at 1104-1105, Page 490 U. S. 750 n. 18. With that expectation, the parties at the outset can
settle on relevant contractual terms, such as the price for the
work and the ownership of reproduction rights.

															To the extent that petitioners endorse an actual control test,
[ Footnote 17 ] CCNV's
construction of the work for hire provisions prevents such
planning. Because that test turns on whether the hiring party has
closely monitored the production process, the parties would not
know until late in the process, if not until the work is completed,
whether a work will ultimately fall within § 101(1). Under
petitioners' approach, therefore, parties would have to predict in
advance whether the hiring party will sufficiently control a given
work to make it the author.

															"If they guess incorrectly, their reliance on 'work for hire' or
an assignment may give them a copyright interest that they did not
bargain for." Easter Seal Society, 815 F.2d at 333; accord,
Dumas, 865 F.2d at 1103. This understanding of the work for
hire provisions clearly thwarts Congress' goal of ensuring
predictability through advance planning. Moreover, petitioners'
interpretation

															"leaves the door open for hiring parties, who have failed to get
a full assignment of copyright rights from independent contractors
falling outside the subdivision (2) guidelines, to unilaterally
obtain work-made-for-hire rights years after the work has been
completed as long as they directed or supervised the work, a
standard that is hard not to meet when one is a hiring party."

															Hamilton, Commissioned Works as Works Made for Hire Under the
1976 Copyright Act: Misinterpretation and Injustice, 135
U.Pa.L.Rev. 1281, 1304 (1987).

															In sum, we must reject petitioners' argument. Transforming a
commissioned work into a work by an employee on the basis of the
hiring party's right to control, or actual control of, the work is
inconsistent with the language, structure, and legislative history
of the work for hire provisions. To Page 490 U. S. 751 determine whether a work is for hire under the Act, a court
first should ascertain, using principles of general common law of
agency, whether the work was prepared by an employee or an
independent contractor. After making this determination, the court
can apply the appropriate subsection of § 101. B We turn, finally, to an application of § 101 to Reid's
production of "Third World America." In determining whether a hired
party is an employee under the general common law of agency, we
consider the hiring party's right to control the manner and means
by which the product is accomplished. [ Footnote 18 ] Among the other factors relevant to this
inquiry are the skill required; [ Footnote 19 ] the source of the instrumentalities and
tools; [ Footnote 20 ] the
location of the work; [ Footnote
21 ] the duration of the relationship between the parties;
[ Footnote 22 ] whether the
hiring party has the right to assign additional projects to the
hired party; [ Footnote 23 ]
the extent of the hired party's discretion over when and how long
to work; [ Footnote 24 ] the
method of payment; [ Footnote
25 ] the hired party's role in hiring and Page 490 U. S. 752 paying assistants; [ Footnote
26 ] whether the work is part of the regular business of the
hiring party; [ Footnote 27 ]
whether the hiring party is in business; [ Footnote 28 ] the provision of employee benefits;
[ Footnote 29 ] and the tax
treatment of the hired party. [ Footnote 30 ] See Restatement § 220(2) (setting
forth a nonexhaustive list of factors relevant to determining
whether a hired party is an employee). [ Footnote 31 ] No one of these factors is determinative. See Ward, 362 U.S. at 362 U. S. 400 ; Hilton Int'l Co. v. NLRB, 690 F.2d 318, 321 (CA2
1982).

															Examining the circumstances of this case in light of these
factors, we agree with the Court of Appeals that Reid was not an
employee of CCNV, but an independent contractor. 270 U.S.App.D.C.
at 35, n. 11, 846 F.2d at 1494, n. 11. True, CCNV members directed
enough of Reid's work to ensure that he produced a sculpture that
met their specifications. 652 F. Supp. at 1456. But the extent of
control the hiring party exercises over the details of the product
is not dispositive. Indeed, all the other circumstances weigh
heavily against finding an employment relationship. Reid is a
sculptor, a skilled occupation. Reid supplied his own tools. He
worked in his own studio in Baltimore, making daily supervision of
his activities from Washington practicably impossible. Reid was
retained for less than two months, a relatively Page 490 U. S. 753 short period of time. During and after this time, CCNV had no
right to assign additional projects to Reid. Apart from the
deadline for completing the sculpture, Reid had absolute freedom to
decide when and how long to work. CCNV paid Reid $15,000, a sum
dependent on "completion of a specific job, a method by which
independent contractors are often compensated." Holt v.
Winpisinger, 258 U.S.App.D.C. 343, 351, 811 F.2d 1532, 1540
(1987). Reid had total discretion in hiring and paying assistants.
"Creating sculptures was hardly regular business' for CCNV."
270 U.S.App.D.C. at 35, n. 11, 846 F.2d at 1494, n. 11. Indeed,
CCNV is not a business at all. Finally, CCNV did not pay payroll or
Social Security taxes, provide any employee benefits, or contribute
to unemployment insurance or workers' compensation funds. Because Reid was an independent contractor, whether "Third World
America" is a work for hire depends on whether it satisfies the
terms of § 101(2). This petitioners concede it cannot do. Thus,
CCNV is not the author of "Third World America" by virtue of the
work for hire provisions of the Act. However, as the Court of
Appeals made clear, CCNV nevertheless may be a joint author of the
sculpture if, on remand, the District Court determines that CCNV
and Reid prepared the work "with the intention that their
contributions be merged into inseparable or interdependent parts of
a unitary whole." 17 U.S.C. § 101. [ Footnote 32 ] In that case, CCNV and Reid would be
co-owners of the copyright in the work. See § 201(a).

															For the aforestated reasons, we affirm the judgment of the Court
of Appeals for the District of Columbia Circuit. It is so ordered. [ Footnote 1 ]

															Purtee was named as a defendant, but never appeared or claimed
any interest in the statue.

															[ Footnote 2 ] Compare Easter Seal Society for Crippled Children and Adults
of Louisiana, Inc. v. Playboy Enterprises, 815 F.2d 323 (CA5
1987), cert. denied, 485 U.S. 981 (1988) (agency law
determines who is an employee under § 101), with Brunswick
Beacon, Inc. v. Schock-Hopchas Publishing Co., 810 F.2d 410
(CA4 1987) (supervision and control standard determines who is an
employee under § 101); Evans Newton, Inc. v. Chicago Systems
Software, 793 F.2d 889 (CA7), cert. denied, 479 U.S.
949 (1986) (same); and Aldon Accessories Ltd. v. Spiegel,
Inc., 738 F.2d 548 (CA2), cert. denied, 469 U.S. 982
(1984) (same). See also Dumas v. Gommerman, 865 F.2d 1093
(CA9 1989) (a multifactor formal, salaried employee test determines
who is an employee under § 101).

															[ Footnote 3 ]

															We use the phrase "work for hire" interchangeably with the more
cumbersome statutory phrase "work made for hire."

															[ Footnote 4 ]

															As of 1955, approximately 40 percent of all copyright
registrations were for works for hire, according to a Copyright
Office study. See Varmer, Works Made for Hire and On
Commission, in Studies Prepared for the Subcommittee on Patents,
Trademarks, and Copyrights of the Senate Committee on the
Judiciary, Study No. 13, 86th Cong., 2d Sess., 139, n. 49 (Comm.
Print 1960) (hereinafter Varmer, Works Made for Hire). The
Copyright Office does not keep more recent statistics on the number
of work for hire registrations.

															[ Footnote 5 ]

															Section 101 of the Act defines each of the nine categories of
"specially ordered or commissioned" works.

															[ Footnote 6 ]

															By "hiring party," we mean to refer to the party who claims
ownership of the copyright by virtue of the work for hire
doctrine.

															[ Footnote 7 ] See Supplementary Report of the Register of Copyrights
on the General Revision of the U.S. Copyright Law: 1965 Revision
Bill, 89th Cong., 1st Sess., Copyright Law Revision, pt. 6, pp.
66-67 (H.R. Judiciary Comm. Print 1965) (hereinafter Supplementary
Report); Hardy, Copyright Law's Concept of Employment -- What
Congress Really Intended, 35 J. Copr. Soc. USA 210, 244-245
(1988).

															[ Footnote 8 ]

															We also reject the suggestion of respondent and amici that the § 101(1) term "employee" refers only to formal, salaried
employees. While there is some support for such a definition in the
legislative history, see Varmer, Works Made for Hire 130;
n. 11, infra, the language of § 101(1) cannot support it.
The Act does not say "formal" or "salaried" employee, but simply
"employee." Moreover, respondent and those amici who
endorse a formal, salaried employee test do not agree upon the
content of this test. Compare, e.g., Brief for Respondent
37 (hired party who is on payroll is an employee within § 101(1)) with Tr. of Oral Arg. 31 (hired party who receives a
salary or commissions regularly is an employee within § 101(1)); and Brief for Volunteer Lawyers for the Arts Inc. et
al. as Amici Curiae 4 (hired party who receives a
salary and is treated as an employee for Social Security and tax
purposes is an employee within § 101(1)). Even the one Court of
Appeals to adopt what it termed a formal, salaried employee test in
fact embraced an approach incorporating numerous factors drawn from
the agency law definition of employee which we endorse. See
Dumas, 865 F.2d at 1104.

															[ Footnote 9 ]

															The concept of works made for hire first arose in controversies
over copyright ownership involving works produced by persons whom
all parties agreed were employees. See, e.g., Colliery Engineer
Co. v. United Correspondence Schools Co., 94 F. 152 (CC SDNY
1899); Little v. Gould, 15 F. Cas. 612 (CC NDNY 1852).
This Court first took note of the work for hire doctrine in Bleistein v. Donaldson Lithographing Co., 188 U.
S. 239 , 188 U. S. 248 (1903), where we found that an employer owned the copyright to
advertisements that had been created by an employee in the course
of his employment. Bleistein did not, however, purport to
define "employee."

															[ Footnote 10 ] See Varmer, Works Made for Hire 130; Fidlow, The "Works
Made for Hire" Doctrine and the Employee/Independent Contractor
Dichotomy: The Need for Congressional Clarification, 10 Hastings
Comm.Ent.L.J. 591, 600-601 (1988). Indeed, the Varmer study, which
was commissioned by Congress as part of the revision process,
itself contained separate subsections labeled "Works Made for Hire"
and "Works Made on Commission." It nowhere indicated that the two
categories might overlap, or that commissioned works could be made
by an employee.

															[ Footnote 11 ] See, e.g., Preliminary Draft, at 259 (statement of
Horace S. Manges, Joint Committee of the American Book Publishers
Council and the American Textbook Publishers Institute) ("There
would be a necessity of putting people on the payroll whom the
employers wouldn't want to put on the payroll, and where the
employees would prefer to work as independent contractors"); id. at 272 (statement of Saul N. Rittenberg, MGM) ("[T]he
present draft has given more emphasis to formalism than necessary.
If I commission a work from a man, ordering a work specially for my
purposes, and I pay for it, what difference does it make whether I
put him under an employment contract or establish an independent
contractor relationship?"); id. at 260 (statement of John
R. Peterson, American Bar Association) ("I don't think there is any
valid philosophical or economic difference between the situation in
which you have a man on a continuing basis of orders which
justifies placing him on your payroll, and the situation in which
you give him a particular order for a particular job").

															[ Footnote 12 ]

															The parties to the joint memorandum included representatives of
the major competing interests involved in the copyright revision
process: publishers and authors, composers, and lyricists. See Copyright Law Revision: Hearings on H.R. 4347, 5680,
6831, 6835 before Subcommittee No. 3 of the House Committee on the
Judiciary, 89th Cong., 1st Sess., pt. 1, p. 134 (1965).

															[ Footnote 13 ]

															An attempt to add "photographic or other portrait[s]," S.Rep.
No. 94-473, p. 4 (1975), to the list of commissioned works eligible
for work for hire status failed after the Register of Copyrights
objected:

															"The addition of portraits to the list of commissioned works
that can be made into 'works made for hire' by agreement of the
parties is difficult to justify. Artists and photographers are
among the most vulnerable and poorly protected of all the
beneficiaries of the copyright law, and it seems clear that, like
serious composers and choreographers, they were not intended to be
treated as 'employees' under the carefully negotiated definition in
section 101."

															Second Supplementary Report of the Register of Copyrights on the
General Revision of the U.S. Copyright Law: 1975 Revision Bill,
Chapter XI, pp. 12-13.

															[ Footnote 14 ]

															Strict adherence to the language and structure of the Act is
particularly appropriate where, as here, a statute is the result of
a series of carefully crafted compromises. See Rodriguez v.
Compass Shipping Co., 451 U. S. 596 , 451 U. S. 617 (1981); United States v. Sisson, 399 U.
S. 267 , 399 U. S. 291 , 399 U. S. 298 (1970).

															[ Footnote 15 ]

															In framing other provisions of the Act, Congress indicated when
it intended to incorporate existing case law. See, e.g., H.R.Rep. No. 94-1476, p. 121 (1976) ("There is . . . no need for a
specific statutory provision concerning the rights and duties of
the coowners [ sic ] of a work; court-made law on this point
is left undisturbed"); S.Rep. No. 94-473, supra, at 104
(same).

															[ Footnote 16 ]

															Over the course of the copyright revision process, Congress
frequently endorsed a negotiated compromise which, years later, in
1976, it formally enacted with only minor revisions. See Mills
Music, Inc. v. Snyder, 469 U. S. 153 , 469 U. S.
160 -161 (1985).

															[ Footnote 17 ]

															Petitioners concede that, as a practical matter, it is often
difficult to demonstrate the existence of a right to control
without evidence of the actual exercise of that right. See
Murray v. Gelderman, 566 F.2d 1307, 1310-1311 (CA5 1978).

															[ Footnote 18 ] See, e.g., Hilton Int'l Co. v. NLRB, 690 F.2d 318, 320
(CA2 1982); NLRB v. Maine Caterers, Inc., 654 F.2d 131,
133 (CA1 1981), cert denied, 455 U.S. 940 (1982);
Restatement § 220(1).

															[ Footnote 19 ] See, e.g., Bartels v. Birmingham, 332 U.
S. 126 , 332 U. S. 132 (1947); Hilton Int'l Co., supra, at 320; NLRB v. A.
Duie Pyle, Inc., 606 F.2d 379, 382 (CA3 1979); Restatement §
220(2)(d).

															[ Footnote 20 ] See, e.g., NLRB v. United Ins. Co. of America, 390 U. S. 254 , 390 U. S. 258 (1968); United States v. Silk, 331 U.
S. 704 , 331 U. S. 717 , 331 U. S. 718 (1947); Dumas, 865 F.2d at 1105; Restatement §
220(2)(e).

															[ Footnote 21 ] See, e.g., United Ins. Co., supra, at 390 U. S. 258 ; Dumas, supra, at 1105; Darden v. Nationwide Mutual
Ins. Co., 796 F.2d 701, 705 (CA4 1986); Restatement §
220(2)(e).

															[ Footnote 22 ] See, e.g., United Ins. Co., supra, at 390 U. S. 259 ; Bartels, supra, at 332 U. S. 132 ;
Restatement § 220(2)(f).

															[ Footnote 23 ] See, e.g., Dumas, supra, at 1105.

															[ Footnote 24 ] See, e.g., United Ins. Co., supra, at 390 U. S. 258 ; Short v. Central States, Southeast & Southwest Areas
Pension Fund, 729 F.2d 567, 574 (CA8 1984).

															[ Footnote 25 ] See, e.g., Dumas, supra, at 1105; Darden,
supra, at 705; Holt v. Winpisinger, 258 U.S.App.D.C.
343, 351, 811 F.2d 1532, 1540 (1987); Restatement § 220(2)(g).

															[ Footnote 26 ] See, e.g., Bartels, supra, at 332 U. S. 132 ; Silk, supra, at 719; Darden, supra, at 705; Short, supra, at 574.

															[ Footnote 27 ] See, e.g., United Ins. Co., supra, at 259; Silk,
supra, at 718; Dumas supra, at 1105; Hilton Int'l
Co., supra, at 321; Restatement § 220(2)(h).

															[ Footnote 28 ] See, e.g., Restatement § 220(2)(j).

															[ Footnote 29 ] See, e.g., United Ins. Co., supra, at 390 U. S. 259 ; Dumas, supra, at 1105; Short, supra, at 574.

															[ Footnote 30 ] See, e.g., Dumas, supra, at 1105.

															[ Footnote 31 ]

															In determining whether a hired party is an employee under the
general common law of agency, we have traditionally looked for
guidance to the Restatement of Agency. See, e.g., Kelley v.
Southern Pacific Co., 419 U. S. 318 , 419 U. S.
323 -324, and n. 5 (1974); id. at 419 U. S. 332 (Stewart, J., concurring in judgment); Ward v. Atlantic Coast
Line R. Co., 362 U. S. 396 , 362 U. S. 400 (1960); Baker v. Texas & Pacific R. Co., 359 U.
S. 227 , 359 U. S. 228 (1959).

															[ Footnote 32 ]

															Neither CCNV nor Reid sought review of the Court of Appeals'
remand order. We therefore have no occasion to pass judgment on the
applicability of the Act's joint authorship provisions to this
case.

Summary:
Here is a summary of the case:

Community for Creative Non-Violence v. Reid (1989):

- Facts: The Community for Creative Non-Violence (CCNV), an organization dedicated to eliminating homelessness, commissioned a sculpture from artist Reid to display at a Christmas pageant. The parties had an oral agreement, and CCNV members visited Reid's studio to check on his progress and coordinate the construction of the sculpture's base. After completion, a dispute arose over copyright ownership when both parties filed competing registration certificates.
- Issue: Whether the sculpture was a "work made for hire" under the Copyright Act of 1976, and thus owned exclusively by CCNV.
- Holding: The Supreme Court held that a court should first apply common law agency principles to determine if a work was prepared by an employee or an independent contractor. If the creator is an employee, then the work is considered "work made for hire" under § 101(1). If the creator is an independent contractor, then the court should apply § 101(2) to determine if the work falls within one of the nine categories of "specially ordered or commissioned" works.
- Result: The Court found that Reid was an independent contractor and that sculpture was not included in the § 101(2) categories. Therefore, the sculpture was not a "work made for hire," and the case was remanded to determine if the statue was jointly authored, resulting in co-ownership of the copyright.