In the previous blog post in this series (Part 1), we presented and discussed several visual arts copyright cases addressing the issue of copyrightability. In this blog, we look at authorship copyright cases visual artists should know and be aware of.
Considerations When Determining a Work Made for Hire
Under copyright law, the creator of the original expression in a work of visual art is usually considered the author of the work. However, there is an exception to the rule when the work is created as a “work made for hire.” Under this exception, the party that hired the individual who created the work is the author and copyright owner of the work. As section 101 of the Copyright Act states, this occurs when either (1) a work is prepared by an employee within the scope of his or her employment or (2) when a type of work is created as a result of an express written agreement between the creator and a party specially ordering or commissioning the work and in which the work falls into one of the nine categories enumerated in the statute.
Under this exception, disputes and complications can arise, particularly in ownership and authorship cases that visual artists should know. This was the issue in the notable case Community for Creative Non-Violence v. Reid. In this case, Community for Creative Non-Violence (CCNV) paid sculptor James Earl Reid for a statue that depicted the plight of homeless people for a Christmas pageant in Washington D.C. CCNV members visited Reid’s studio as he made the statue and gave suggestions and directions about its appearance. CCNV paid Reid the final installment on delivery, but they did not discuss copyright ownership in the sculpture. They both subsequently filed competing copyright registration certificates, and a lawsuit followed.
The Supreme Court explored how the term “employee” has a particular meaning, derived from common law agency principles, wherein one party performs labor for another under circumstances in which that other exerts substantial control over the work environment on the laborer, as well as the manner of performance. Numerous factors figured in this equation, such as the level of skill required, tax treatment of the putative employee, the singularity of the assignment (i.e., CCNV had no right to assign additional projects), the level of supervision, the times worked, and the source of the instrumentalities of the labor.
Applying these factors in this case, the Court found that although CCNV exerted direction and control over the progress of the work, many other factors weighed against finding that Reid created a work made for hire. These include the facts that Reid was retained only for this single assignment, he was not on CCNV’s payroll or had Social Security taxes deducted or benefits paid out, and he provided his own work area and tools. The Court thus held that Reid was not an employee of CCNV, but rather an independent contractor.
Visual artists should ensure that expectations around copyright ownership, independent contractor status, or employment status are made clear before initiation of a project, particularly if they are paid or hired by a third party to make a work.
Human Authorship Requirement
In this digital era, when AI is being utilized to manufacture works of art, the human authorship requirement is a growing and contentious issue. Copyright laws protect original works of authorship, meaning such work “must be created [or authored] by a human being.” Time and time again, the Copyright Office has stated that for a work to be eligible for copyright registration, the works must have been the “fruits of intellectual labor” that “are founded in the creative powers of the mind.” In essence, copyright protection is only available for works of art that are creations of human authors.
The distinction between human and non-human contributions arose in an authorship copyright case that visual artists should know, Kelley v. Chicago Park Distr. In that case, the Seventh Circuit Court of Appeals questioned whether a living garden was “authored.” In 1986, Chapman Kelley installed a wildflower display in Chicago’s Grant Park, “Wildflower Works,” which was promoted as a living work of art. Specifically, Kelley designed this arrangement and placement of flowers to allow them to “blossom sequentially, changing colors throughout the growing season and increasing brightness towards the center of each ellipse.” In determining copyrightability, the court first noted that “a living garden lacks the kind of authorship and stable fixation normally required to support copyright.” The court emphasized that authorship is a “human endeavor” and as such, “works owing their form to the forces of nature cannot be copyrighted.” Applying such principles, the court found Kelley’s work to be cultivated, not “authored,” and owing its form and appearance to “natural forces,” despite the contention (insufficient here) that a florist who tends to such displays can assist in arranging its appearance.
The human authorship requirement is now being tested in the AI space, particularly where humans input prompts into generative AI tools and systems, which then generate works of art. What has resulted are disputes over the Copyright Office’s refusals to register AI-generated works.
Such a contest arose in Thaler v. Perlmutter, a case resulting from the Copyright Office’s refusal to register Stephen Taler’s two-dimensional artwork titled, “A Recent Entrance to Paradise” for its lack of sufficient human authorship. The author of this work was identified as the “Creativity Machine,” which “autonomously created [the work] by a computer algorithm . . .” In line with the Copyright Office’s stance, judicial precedent, and statutory text, the District Court for the District of Columbia agreed that the work was not protectable, stating that “[c]opyright has never stretched so far, however, as to protect works generated by new forms of technology operating absent any guiding human hand . . . Human authorship is a bedrock requirement of copyright.” Specifically, a copyrightable work must have originated from an author “with the capacity for intellectual, creative, or artistic labor,” i.e., a human.
Visual artists should be aware that human authorship is a fundamental requirement to obtaining copyright protection and be particularly mindful of this principle when creating works that may contain elements that are generated or produced by a non-human.
Authorship is a crucial principle that underlies copyright law, and is a requirement for copyrightability and significant to determining ownership issues. As discussed in the authorship copyright cases above, visual artists should be aware of how making works for organizations/entities, from elements of nature, or with the aid of technology, can limit or downright affect ownership and enforcement issues of the works they create. As has been stated time and time again, human authorship and contribution is essential for copyright protection. The next and final installment in this blog series, Part 3, will focus on fair use cases visual artists should know.
If you aren’t already a member of the Copyright Alliance, you can join today by completing our Individual Creator Members membership form! Members gain access to monthly newsletters, educational webinars, and so much more — all for free!