ASMP Northern California Members Listserv Thought this might be of interest to the list: Begin forwarded message: > > Question for both David Sturtevant and Kevin Grierson. > Do you believe that the decision in the National Geographic case > applies to custom computer software? It doesn't seem to fall into any > of > the 9 categories, so it wouldn't be a work-for-hire unless that > provision > were in the original contract (?) > Richard Dolen, > President, Richard Dolen, Inc. > Software Design > 310 828 0478 > rdolen@worldnet.att.net > ----- Original Message ----- > From: "David Sturtevant" > To: > Sent: Monday, July 29, 2002 11:02 AM > Subject: RE: IP SIG: update on National Geographic case > > >> Following Kevin Grierson's comments, I'd like to add a couple notes on >> work-for-hire (hopefully for the sake of clarification and not >> confusion). >> >> For a copyrightable work (that is not made by an employee) to be > considered >> a work made for hire, it must be a work specially ordered or >> commissioned >> from an independent contractor that falls within the following >> categories: >> (1) a contribution to a collective work, >> (2) part of a motion picture or other audiovisual work, >> (3) a translation, >> (4) a supplementary work (e.g. forewords, afterwords, maps, etc.) >> (5) a compilation, >> (6) an instructional text, >> (7) a test, >> (8) answer material for a test, and >> (9) an atlas. >> >> Such a work is a work made for hire and the commissioner holds all > copyright >> (for the duration of the copyright) provided the parties label it as >> such > in >> a signed, written agreement. >> >> However, if the work that has been commissioned is copyrightable but >> does >> not fall within the 9 categories, then the work is not considered a >> work >> made for hire and the author of the work retains the copyright. The > author >> may assign (in writing) his or her rights in the work to another party, > but >> the author of the assigned work also has a right to terminate the > assignment >> within a prescribed period of time, depending on when the work was > created: >> (1) created before 1/1/78: the author may terminate the assignment > beginning >> 56 years after the work was first published, or >> (2) created on or after 1/1/78: the author may terminate the assignment >> during a five-year period that starts 35 years after the grant. >> >> In the case of termination, the exclusive rights in the work would >> revert >> back to the author for the remainder of the copyright term. >> >> >> David Sturtevant >> Head of Collections Information and Access >> SFMOMA >> >> phone: 415-618-3272 >> fax: 415-947-1258 >> email: dsturtevant@sfmoma.org >> >> >> -----Original Message----- >> From: Kevin Grierson [mailto:kgrierson@wilsav.com] >> Sent: Thursday, July 25, 2002 1:20 PM >> To: mcn-l@mcn.edu >> Subject: Re: IP SIG: update on National Geographic case >> >> >> One important "practice pointer" is in order: >> >> The court's review of industry practice for determining if something >> is a >> "work made for hire" is relevant ONLY to pre-1978 works. For works >> made >> after the effective date of the Copyright Act of 1976, the rules are >> different: For any work not by an employee to be a work made for hire, >> you >> MUST have a written agreement. No exceptions. The courts will, under >> appropriate circumstances, imply a non-exclusive license to the party > paying >> for the work, but they will not imply an exclusive license in the >> absence > of >> a written agreement. >> >> Kevin Grierson >> >> >> >>>>> akeshet@netvision.net.il 07/25/02 03:31PM >>> >> Forwarded from the museip list: >> >> >>> 7/13/02 / District Court (SD NY) -- Ward v. National Geographic >>> Society >>> Ward, a freelance photographer, sued NGS for copyright infringement >>> when NGS produced and sold a CD-ROM and DVD archive of all past >>> National Geographic issues. In the most recent developments in this >>> case, the court reviewed the NGS summary judgment motion, finding for >>> the most part in favor of Ward. NGS claimed that all of the material >>> was created as works for hire; Ward argued that he still retained >>> copyright. In that absence of written agreements or assignments, >>> industry standards supported Ward's position. In addition, Ward >>> showed a letter from NGS confirming that it was only interested in >>> exclusive first-time rights, not in copyright; and NGS had previously >>> paid for permission to reuse the works. For one work, Ward had >>> written a letter assigning all rights to NGS?that work was dismissed >>> from the case. >>> >>> http://www.nysd.uscourts.gov/courtweb/pdf/D02NYSC/02-06652.PDF >> >> Thomas Bachand Editor / Webmaster ASMP Northern California P.O. Box 20796 Oakland, CA 94620 510.547.8622 editor@asmpnorcal.org http;//www.asmpnorcal.org The American Society of Media Photographers - advocating for imaging professionals worldwide. --- You are currently subscribed to members as: info@danheller.com To unsubscribe send a blank email to leave-members-971O@asmpnorcal.org