Carter v. Helmsley-Spear, Inc., 71 F.3d 77 (1995) p.291

SUBJECT

Work for hire

FACTS

Artists brought action to prevent alteration of art work installed by them in lobby of commercial building and to recover money damages. Building owner and manager filed counterclaim alleging waste.

PROCEDURE

The United States District Court for the Southern District of New York, David N. Edelstein, J., 861 F.Supp. 303, enjoined owner and manager from altering work. Owner and manager appealed. Artists cross-appealed from dismissal of claim for tortious interference with contractual relations and denial of request to complete work and for attorney's fees and costs.

ISSUE

Whether or not the author owned the copyrights to the sculptor or whether the author transferred the copyrights.

RULE

This was a work for hire since he was an employee

HOLDING

The Court of Appeals, Cardamone, Circuit Judge, held that: (1) district court could find that some parts of sculpture were separate works while remainder constituted single, interrelated work; (2) sculpture was not "applied art"; and (3) sculpture was "work made for hire" and thus not protected under Visual Artists Rights Act (VARA). Reversed and vacated in part and affirmed in part.

RATIONAL

"Moral rights" of artist spring from belief that artist in process of creation injects artist's spirit into work and that artist's personality, as well as integrity of work, should therefore be protected and preserved; because they are personal to artist, moral rights exist independently of artist's copyright in work. See publication Words and Phrases for other judicial constructions and definitions. Moral right of "attribution" generally consists of right of artist to be recognized by name as author of work or to publish anonymously or pseudonymously, right to prevent author's work from being attributed to someone else, and to prevent use of author's name on works created by others, including distorted editions of author's original work. Trial court did not clearly err in determining that some parts of sculpture installed in lobby of commercial building were separate works of art while remainder constituted single, interrelated, indivisible work of art, for purpose of artists' action seeking to preserve works under Visual Artists Rights Act (VARA), based on witness's testimony and court's own inspection of work, regardless of parties' joint stipulation as to definition of work. Sculpture installed in lobby of commercial building was "work made for hire," and thus was not protected from modification or destruction under Visual Artists Rights Act (VARA); although artists had significant control over work and work required great skill in execution, management company had right to, and in fact did, assign other duties to artists, employee benefits and tax treatment of artists indicated employee status, and artists were provided with many supplies used in creating sculpture. 17 U.S.C.A. § 101. See publication Words and Phrases for other judicial constructions and definitions.

POLICY/NOTES

No one of the thirteen factors mention in CCNV is dispositive. Court of Appeals ignored the fact that there had been an agreement that sculptor owned the copyright. Attorney in the case should have asked for reconsideration.