ARTIST WINS IN SUPREME COURT

COPYRIGHT RULING AGAINST CCNV COULD HAVE WIDE IMPACT FOR FREELANCERS, COMPANIES

In a victory for artists, the Supreme Court yesterday said Baltimore sculptor James Earl Reid was a freelancer and not an employee when he created a modern-day nativity scene for the Community for Creative Non-Violence and thus did not lose his copyright on the work.

The ruling, which could affect contracts worth millions of dollars, makes it more difficult for a commissioning party to assume copyright of work created by freelance artists, writers, computer programmers and others. The case had pitted Reid, a relative unknown, against activist for the homeless Mitch Snyder and a surprising array of corporate allies -- including IBM Corp., Time Inc., Dow Chemical and The Washington Post Co. -- concerned that a win for Reid could greatly expand the rights of freelance creators.

"It's a moral victory," said Reid of the 9-to-0 decision. "It reestablishes my control over the destiny of the work. I feel I'm released to go on and do the kind of things I'm supposed to be doing as an artist."

CCNV v. Reid centered on a debate over copyright law and the definition of the word "employee." The case began more than three years ago, almost immediately after Reid completed work on "Third World America," a nearly life-size sculpture of a mother and father huddled over an infant on a steam grate. CCNV paid $15,000 for Reid's expenses, the artist donated his time, and no one discussed who would hold the copyright for the finished work.

Under copyright law, the creator of a piece of work normally holds the copyright to it, but the work-for-hire doctrine of the 1976 Copyright Act gives the copyright under certain circumstances to the party that commissions the work. If the person who creates the work qualifies as an employee, the copyright goes to the commissioning party. CCNV claimed that because Snyder and others supervised the creation of the statue, Reid was an employee while making the piece and thus came under the work-for-hire doctrine, giving the copyright to CCNV. Reid countered that he was an independent contractor and should retain the copyright.

Justice Thurgood Marshall, writing for the court, rejected the argument that supervision alone can be used to decide who is an employee and found that Reid was indeed a freelance contractor.

"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," Marshall wrote. He said that "other factors" as well must be taken into consideration when defining employment.

The decision does not completely resolve the work-for-hire debate, which has simmered among artists and employers since the 1976 copyright law went into effect. Nor does it necessarily end the legal battle between Reid and Snyder, since the court's decision in CCNV v. Reid sends the case back to D.C. Superior Court to determine if Reid and CCNV share copyright on "Third World America."

"As far as the case goes, obviously we're disappointed," said Robert Garrett, who argued the case for CCNV. "But the bottom line for us is that we are today where we were a year ago, before the D.C. court. It's not a work-for-hire, and we probably have to go back for a couple of years of litigation on joint works."

CCNV had commissioned "Third World America" to be included in the 1985 Christmas Pageant of Peace on the Mall. The argument began when CCNV later decided to take the statue on a national tour and Reid argued it was too fragile to make the trip. Both Reid and CCNV then attempted to register for copyright. CCNV filed suit, claiming copyright, and a federal judge ruled in the organization's favor. The U.S. Court of Appeals, however, overturned the decision, ordering further hearings to decide on the question of joint ownership.

The personal invective surrounding the case escalated as Snyder and Reid accused each other of greed and bad faith. Snyder said that the statue was never intended to benefit the artist financially. Reid said he never intended his piece to be a work-for-hire and that he had assumed he would retain the copyright.

Yesterday Reid said he hoped the dispute could now be resolved privately, although he does not want to share the copyright with CCNV. Snyder, who has said he found the corporate backing in the case disturbing, was traveling and could not be reached for comment, but Garrett said the activist intends to fight for joint copyright.

The court's decision is expected to affect the way business is done in the publishing and computer industries and other fields that rely on freelancers, although the two sides disagree on what the exact effect will be.

"To a great extent, what this is going to do is require all the players to deal with these issues up front," said Joshua Kaufman, Reid's lawyer and a specialist in arts law. Artists and employers will now be less likely to make quick, informal agreements that leave artists vulnerable to losing their copyright inadvertently, Kaufman said. "What it eliminates is the ability of a commissioning party to gain what they have not negotiated for."

Representatives of groups who supported CCNV's case suggested that the court's decision could mean that employers of photographers, writers, graphic artists and computer program designers may now have second thoughts about hiring freelancers.

"I think it could stifle the use of contractors," said Ted Heydinger, vice president of the Computer and Business Equipment Manufacturers Association, which filed a brief in support of CCNV. "Any time you raise questions of ownership, it's bound to have some sort of stifling effect, I just don't know how much."

Congress may also take up the question of work-for-hire. Sen. Thad Cochran (R-Miss.) has introduced legislation several times to clarify the doctrine and will hold hearings on the issue this summer. Cochran said he was encouraged by the court's decision.

"I think it lends credibility to the position that my bill takes," he said. "The employers, the publishers and the groups who normally employ freelance artists have been getting around what I think the intention of the law was by using a work-for-hire doctrine to extinguish all rights of the artist and their works."

Articles appear as they were originally printed in The Washington Post and may not include subsequent corrections.