I'm with puamana... and a few others.

1) Customer pays a premium price for full ownership of your business' IP (it is your IP since you created and wrote it and it's what your business relies on). This should be the default contract since customers expect to have ownership.

2) Customer pays a economical price for template driven design which they contractually know is not unique and could be reused for anyone, including their competitor.

If companies want to hire you, and they want a competitive edge, they'll end up paying you more for your work as option #1.

My2Cents to an already full bank.

__________________
Follow me on Twitter and Twinkle: @SoYouKnow

************************************************** ************************************************** ************************************************** ************************* Did you read all this mess! ************************************************** ************************************************** *************************

Don't get me wrong here! There are alot of good points about contracts and who owns rights to what in website design, web development, painters, content writers etc.......... But that is leading us all away from answering the question. In my opinion, it comes down to what you produce, and how it is intended to be used before you create it. Most of the time, all is needed is a better understanding of both parties intensions before the contract is written. I'm sure your client is not out to do you in, as I am sure you do not wish to do your client any harm either. Have you bothered to discuss your reasons for wanting to retain these rights with your client. When dealing with clients, compromise is always the best policy!!! The great thing about transferring rights to something is that certain conditions can apply!!!

By analogy to a particular recording of a song:

1) Lyrics = Site content
2) Melody = Site structure
3) Arrangement = Style(s)

Of these, which is it that you seek to retain ownership of and why?

You've already stated that you cede 1) to the client. And, if the client changes either 2) or 3), those elements are no longer your work(s), but become the work(s) of another, such that you've nothing to protect.

It seems that the only thing to be potentially gained by retaining control over 2) and/or 3) is for the client to be forced to employ you in order to make future changes to the site. In that case, returning to the analogy, that they own the lyrics is of no value, as they cannot perform the song with any melody or arrangement other than those provided by you.

__________________
The Penn State Ticket Man http://www.pennstateticketman.com
http://www.happyvalleytickets.com http://www.hounddogtours.com

Our standard contract indicates that we hold the copyright to design and code. Neither the client nor a future design firm has the right to sell our design and code. However, they are more than welcome to modify it and use it forever.

If someone wants to purchase the copyright--I will take a lesson from Stan Lee and make sure that they give us a million dollars for future movie rights. All kidding aside, I will sell anything for the correct fee. But like all creative work, the client pays based on usage. If the client owns the copyright, then that gives them unlimited usage to duplicate and resell the work for any application or amount that they can. Furthermore, if I were to reuse any of the code or develop--inadvertently--another site I developed using a similar design element contained within the site that I had sold away the rights, I could be held liable.

Then you get into the problems of maybe using any 3rd party code modules. You can't sell the rights away to those.

In my opinion, selling the copyright is a messy place where I would not prefer to go.

~Nick

Ethically, a designer firm is hired to do a job....they should do it , provide all the source and copyrights to client and move ahead...

As no Design is immortal...its a ever changing world. I dont know why a designer firm wants to control the designs; when they can always better with time.

By giving them all right, you will earn a name and honest tag for you, which will help you to get more business...will also help in Social Media Optimization

AMit P Gupta

Web Strategist

Contract negotiations are standard practice.
You should be offering the customer with a world wide exclusive license to use the web site, as that is what they are paying for.
You do not have to give up ownership rights of code however. This is standard practice.
However, as with all things legal, nobody in this thread is allowed to give you legal advice, including me.

I suggest you visit your local solictor and have custom terms and conditions drawn up, or go to Web Design Agreement and see if they approve of that one.

Retaining licenses is quite rightly a point you should be negotiating on. Really, if they have a world wide exclusive license, they shouldn't care who owns the code because they get what they want and you don't have to put your neck on the line with each customer. It's fair, it's legal (in England and Wales) and you shouldn't feel you have to back down in order to land the contract. If you have already done the deal then they have no rights what so ever.

__________________
http://www.youds.com

Regardless of contracts and what is right or wrong, I have one piece of advice which was given to me years ago and has always proved to be correct. 'If the customer is not very nice before you get the contract then they are certainly not going to get any nicer afterwards' Walk away.

As a client, we always insist on total ownership of the finished site - design, origination, everything. It's our web site and it sits under our name, so we want ownership and control. For one thing, if the designer steps in front of a bus or emigrates to Wagga Wagga, we still want to be able to tweak the site layout and graphics without having to start from scratch.

So I would not walk away from the client because of their request. But if the client is as unpleasant as you imply, then you might want to walk away because of that, and her request might be a good excuse. I guess it depends how big the contract is and how much you need the work. But this client could end up being more trouble than she is worth.

__________________
Bruce Townsend
Actinic ecommerce software, ecommerce website design

The artist retains right to the structure/idea of the image, e.g. if somebody copies the piece of work and presents it as his/her own, it is the artist place to sue for copyright infringement, even if the original work is sold to someone else.

Copyright protects only a specific expression of an idea, not the idea/concept itself. The idea/concept may be represented freely by any and all, so long as it is expressed differently.

__________________
The Penn State Ticket Man http://www.pennstateticketman.com
http://www.happyvalleytickets.com http://www.hounddogtours.com

Does it matter if that's normal or not? For me these kind of issues are very simple. The client is king goes the saying, but they´re not your boss. You determine how you run your business. If a client wants something you don't want, the answer is simply: No. In case you´re willing to consider what they want, consider to charge extra for it. You´re giving extra value to them, so you can charge for it. If they don't want to do that, then too bad. I'd even refer them to another company. (one I know delivers less quality, because obviously, the main concern of the client is not quality, but getting a lot of not important things for less.)

As a business you have certain standards that you want to follow. You're unwilling to deliver something that you consider below your standards. When a client doesn't appreciate that or finds other things more important, then it is pretty normal to not be willing to work for that particular client. Not all relationships are meant to be. That's in business as much the case as in any other situation.

By the way, experience teaches that saying no in these cases is a very good sales technique. Often (not always) they call you back after a while...

__________________
FREE SEO ! Really? YES! All you have to do is implement it!
Follow me on Twitter PeterIMC

Is not the idea/concept here to design the layout of a websites content with an eye to structure, color, images, font type and more,
and each web design a unique expression of that idea?

Yes; but:

1) That particular expression exists only so long as it is not changed.

2) Copyright protection does not prohibit another from creating a different rendition, i.e., one that is changed from the original.

3) Most importantly, rights to work-for-hire belong, by default, to the hiring party unless that party affirmitively agrees to surrender such.

__________________
The Penn State Ticket Man http://www.pennstateticketman.com
http://www.happyvalleytickets.com http://www.hounddogtours.com

KUDOS to SuzStephens......this is one SMART lady.

Everyone is saying what their consulting practice would do or how their company would interpret it.

None of that matters.

The law is clear. As I have said before, if you are a webdesign firms customer and you do not get a engagement letter spelling every issue out you are a fool. If you get an engagement letter and you do not have your attorney review it, you are a bigger FOOL. I repeat, there are many more significant issues in that contract then buying a home, preparing a will or most other contracts.

There is nothing wrong with the designer letting the customer have the rights to the logo, but the customer needs to get that in WRITING.

To the person that wanted to know what the difference is with a photographer since they have always owned the copyright for every picture they took.......well, it is a HUGE difference. Your website is often the life blood of your company.....there can be no dispute as to who owns the logo. Further, I believe that you are entitled to own (let me be clear that is my opinion...not what the law says) it if you pay someone to do it as part of the whole website package.....no one should allow a designer to hold them hostage later.

So, if you are the customer demand it in writing. .......and next time when SuzStephens speak....read her stuff.

If she is so smart she would get free legal advice from her local citizens advice bureau but hey ho. Like I said, nobody on this thread is allowed to give legal advice unless they are practicing law.

__________________
http://www.youds.com

Well, without knowing what Law you refer to, one cannot say whether or not you are correct with respect to your particular jurisdiction.

However, where I hail from, the Law is indeed clear to the effect that the results of work for hire belong to the hiring party, not the hired, unless expressly otherwise granted by the hiring party.

__________________
The Penn State Ticket Man http://www.pennstateticketman.com
http://www.happyvalleytickets.com http://www.hounddogtours.com

Hey Dinghus and SEO,

Let's take your analogies one step further and into the real world.

Do you as an MS windows user own the copyright to the windows software that you paid for and installed on your machine? Who paid the money to buy the software to put on your machine?

Do you, as a vehicle owner, own the copyright to the V8 engine? You paid the money to buy the car, right?

Do you as the owner of the same Vehicle that you have bought and paid for, own the copyright to the original blueprints that the car was made from? Sure you can repaint, and bondo and use aftermarket parts and upgrade the engine and electronics. It still doesn't make you the owner of the original design.

You can add as many programs to windows as you want, download new themes, fonts etc. and it STILL DOES NOT MEAN YOU OWN THE COPYRIGHT ON ANY OF IT!! Legal Eagles have made sure of that.

All you get these days is a right to use the design as originally copyrighted. If you change the design or program (assuming you don't or aren't restricted by reverse engineering clauses) by 30% it's no longer covered by copyright laws. Does Microsoft or Ford care? No. Just understand that no support will be given for non-standard equipment (or programs) and you may be required to roll it back to standard to get support. AND that support may be extremely costly due to the Custom work (or screwups) involved.


Shamarkaleo, if the work for the design was put in by you and you are providing it to the customer as part of the whole solution which includes particular design elements not specific to the customer then you should retain the copyright and provide them a right-to-use for those particular elements. Anything that is customer specific though would probably be best to transfer the copyright to them with an RTU ( or an "originally designed by"-line ) on your side for illustration purposes only. (e.g. if you designed a logo or banner for their company you retain the right to say, " I designed that" and show a copy of it to other companies as an example of your portfolio.)

This overlooks the crucial element, that of work-for-hire.

Neither the car, its engine, the OS nor the software applications here addressed were produced at the request and in compliance with the requirements of the customer; i.e., they were not works-for hire. The same holds for a painting voluntarily made by an artist and then later disposed of.

A web site that is designed and implemented at the request of the customer is a work-for-hire.

As I've above noted, all rights to works-for-hire belong to the hiring party, unless expressly otherwise granted by such party.

Therefore, the rights to any and all portions of the design and content of a web site, excluding pre-existing functional components that are the property of another, initially belong to the customer, just as if the customer himself had built the site; the designer acted in the capacity of an employee of the customer. Such rights are the customer's to give, if he so chooses; they are not the designer's to withhold from the customer.

__________________
The Penn State Ticket Man http://www.pennstateticketman.com
http://www.happyvalleytickets.com http://www.hounddogtours.com

That's right brightglaive...

But I didn't pay Bill Gates do design Microsoft Windows for me did I...?

And I didn't pay Henry Ford to design the V8...

Nor did I pay the car manufacturer to design the car for me...

Who owns the copyright...??? The man who Commissioned the work... The man who PAID for the job to be done....

I don't have a problem with people owning copyright when it truly is their own idea, and they step out and complete the work of their own accord... I mean... Come on now...

The scenario put forward here is... I commission you to do a job... I pay you for the job... and you own it...

How far do you think Bill Gates and Henry Ford would have got in this world if they were as foolish as you claim your clients should be...

__________________
Search Engine Optimization - SEO | SEO Tools

I'm not getting it. If a client wants to buy the copyright too, and you´re willing to sell it, then just sell it at an aditional price. If the client doesn't accept that, then too bad. If you´re in doubt, you usually end up giving it away for free. Some clients are smart enough to know this and get a lot more than they pay for.

Just make a decision and stick to it. That's really the only thing missing.

__________________
FREE SEO ! Really? YES! All you have to do is implement it!
Follow me on Twitter PeterIMC

The rights are not the developer's to sell; for work-for-hire, they already belong to the client.

__________________
The Penn State Ticket Man http://www.pennstateticketman.com
http://www.happyvalleytickets.com http://www.hounddogtours.com

To repeat, said rights are not the develpoer's to retain or dispose of; for work-for-hire, they are the property of the client who commissioned the work.

__________________
The Penn State Ticket Man http://www.pennstateticketman.com
http://www.happyvalleytickets.com http://www.hounddogtours.com

Ok....I'll agree with that. But let's get specific then, Were the design elements a work-for-hire or was it the artwork, the color scheme, the layout of the links, the keywords , the SE registration etc. If those types of actual design elements (such as layout, generic or specialized coding or tools, plugins etc that were specifically developed prior to the client's website design commission) were not included in the contract then the client has no right to demand copyright for them. They were not included regardless as to whether they were "tweaked" to work for his/her specific solution.

If I commision a custom car to be built from scratch the copyright on the design for the car may be mine but the copyright for the ford/chevy/dodge/gm/custom V8 engine is not. And just because the car was a commisioned work-for-hire doesn't mean that all copyrights should or will be given up because I, as a customer, demand them.


Now on the other hand if it is a completely work-for-hire situation and everything that is incorporated in the website design and content was developed specifically for AND after the commission AND intellectual property rights are conveyed in the contract. Then sure, I agree with you totally. Everything would then belong to the customer.

The only problem I can see is if the design elements were used previous to this customer's site and he/she is now requesting copyright. The design used may be some previously developed generic template with customer specific custom graphics, color schemes, link schemes etc.

(e.g I've seen PHP website layout for frameless frames that someone developed on their own, not as a work-for-hire. this person has used his design with a few websites he's created as works-for-hire. He retains the copyright for the layout but the customer is given the copyright on all other elements specifically developed after being commisioned.)

Previously addressed, at Contract Conflict! Now What? , by way of "excluding pre-existing functional components that are the property of another."

__________________
The Penn State Ticket Man http://www.pennstateticketman.com
http://www.happyvalleytickets.com http://www.hounddogtours.com

Webdesign is not work-for-hire as far as I know. The designer has the original rights, unless he works (as in being on the pay-roll) for the company that will use the design.

__________________
FREE SEO ! Really? YES! All you have to do is implement it!
Follow me on Twitter PeterIMC

Under US Copyright Law, as well other Law, such as Tax Law, the term "employee" is not used in the common understanding of that term, but under the general Law of Agency, whereby the Acts and Knowledge of the Agent are the Acts and Knowledge of the Principal. Furthermore, with respect to US Copyright Law, the definition of "work for hire" includes work outside of the scope of an employee which is

"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. For the purpose of the foregoing sentence,
a “supplementary work” is a work prepared for a publication as a secondary
adjunct to a work by another author for the purpose of introducing,
concluding, illustrating, explaining, revising, commenting upon, or assisting
in the use of the other work, such as forewords, afterwords, pictorial illustrations,
maps, charts, tables, editorial notes, musical arrangements, answer
material for tests, bibliographies, appendixes, and indexes; and an “instructional
text” is a literary, pictorial, or graphic work prepared for publication

and with the purpose of use in systematic instructional activities."

In the case of a work for hire,
"the employer or other person for whom the work was prepared is the author"

and,

"the employer or other person for whom the work was prepared is the initial owner of the copyright unless there has been a written agreement to the contrary signed by both parties."

There is no exception for "web design."

Note that the above is re. US Copyright Law; that of other countries may vary.

__________________
The Penn State Ticket Man http://www.pennstateticketman.com
http://www.happyvalleytickets.com http://www.hounddogtours.com

I'm with Peter when he said to consider whether you want to work with this difficult client. Completely independent of this debate, if is is already getting a little ugly, it is not likely to get better.

I always turn over all the rights to the client once final payment is made. Never even considered holding that back. I can understand why a customer would want control and as mentioned, and if they get in there (or hire someone who doesn't know what they're doing) and mess it up, they'll probably end up having to pay you to fix it. I don't see how that is all-bad for the designer.

__________________
Zen Cart, Drupal and Southware Netlink E-Commerce - www.OnTargetPro.com

Have you tried to posting this on a blog or forum related to the law. It's easy for us to voice our opinion, but what are the actual repercussions?

The client has a real need for the help or they wouldn't have hired you in the first place which really places the power in your hands. Most people fail to realize this and out of fear of losing the contract they cave in to demands that they might not normally give in to.

That power, though, should not be used to coerce the client into contractually giving up rights that are theirs by law.

__________________
The Penn State Ticket Man http://www.pennstateticketman.com
http://www.happyvalleytickets.com http://www.hounddogtours.com

They can insist on claiming said rights, but that doesn't mean that they own them to begin with.

Try studying the Law re. "works for hire."

__________________
The Penn State Ticket Man http://www.pennstateticketman.com
http://www.happyvalleytickets.com http://www.hounddogtours.com

Works Made for Hire Under the 1976 Copyright Act - Determining Whether a Work Is Made for Hire. Whether or not a particular work is made for hire is determined by the relationship between the parties. This determina-tion may be difficult, because the statutory definition of a work made for hire is complex and not always easily applied. That definition was the focus of a 1989 Supreme Court decision (Community for Creative Non-Violence v. Reid, 490 U.S. 730 [1989]). The court held that to determine whether a work is made for hire, one must first ascertain whether the work was prepared by (1) an employee or (2) an independent contractor. If a work is created by an employee, part 1 of the statutory definition applies, and generally the work would be considered a work made for hire. Important: The term “employee”here is not really the same as the common understanding of the term; for copyright purposes, it means an employee under the general common law of agency. This is explained in further detail below.

If a work is created by an independent contractor (that is, someone who is not an employee under the general common law of agency), then the work is a specially ordered or commissioned work. Such a work can be a work made for hire only if both of the following conditions are met: (1) it comes within one of the nine categories of works listed in part [web design would qualify here] 2 of the defini-tion and (2) there is a written agreement between the parties specifying that the work is a work made for hire.

To help determine who is an employee, the Supreme Court in CCNV v. Reid identified certain factors that characterize an “employer-employee” relationship as defined by agency law:
1 Control by the employer over the work (e.g., the employer may determine how the work is done, has the work done at the employer’s location, and provides equipment or other means to create work)
2 Control by employer over the employee (e.g., the employer controls the employee’s schedule in creating work, has the right to have the employee perform other assignments,determines the method of payment, and/or has the right to hire the employee’s assistants)
3 Status and conduct of employer (e.g., the employer is in business to produce such works, provides the employee with benefits, and/or withholds tax from the employee’s payment)

These factors are not exhaustive. The court left unclear which of these factors must be present to establish the employment relationship under the work for hire definition, but held that supervision or control over creation of the work alone is not controlling. All or most of these factors characterize a regular, salaried employment relationship, and it is clear that a work created within the scope of such employment is a work made for hire (unless the parties involved agree otherwise).

Examples of works for hire created in an employment relationship are:
• A software program created within the scope of his or her duties by a staff programmer for Creative Computer Cor-poration
• A newspaper article written by a staff journalist for publication in the newspaper that employs him
• A musical arrangement written for XYZ Music Company by a salaried arranger on its staff
• A sound recording created by the salaried staff engineers of ABC Record Company

The closer an employment relationship comes to regular,salaried employment, the more likely it is that a work created within the scope of that employment would be a work made for hire. However, since there is no precise standard for determining whether or not a work is made for hire under the first part of the definition, consultation with an attorney for legal advice may be advisable.

Who Is the Author of a Work Made for Hire? If a work is a work made for hire, the employer or other person for whom the work was prepared is the author and should be named as the author in Space 2 of the application for copyright registration. The box marked “work-made-for-hire” should be checked “yes.”Who Is the Owner of the Copyrightin a Work Made for Hire? If a work is a work made for hire, the employer or other person for whom the work was prepared is the initial owner of the copyright unless there has been a written agreement to the contrary signed by both parties.

Source: www.copyright.gov/circs/circ09.pdf

__________________

See above Contract Conflict! Now What? re. "a work specially ordered or commissioned ... "

__________________
The Penn State Ticket Man http://www.pennstateticketman.com
http://www.happyvalleytickets.com http://www.hounddogtours.com

Looks to me that this www.copyright.gov/circs/circ09.pdf,.. says that copyrights depend on the relationship between the parties. If you are employed, you don't own the copyrights. If you are contracted for 1 specific job, but there is no or very little employer - employee relationship, then you own the copyrights.

Case closed!

__________________
FREE SEO ! Really? YES! All you have to do is implement it!
Follow me on Twitter PeterIMC

Not so.

Again, see above http://www.webproworld.com/internet-...tml#post379887 re. "a work specially ordered or commissioned ... "

__________________
The Penn State Ticket Man http://www.pennstateticketman.com
http://www.happyvalleytickets.com http://www.hounddogtours.com

Quote:

Originally Posted by deepsand "

You're missing the conditional language. IT CAN BE A 'Work for Hire' if the parties want it to be, but its not a 'work for hire' by default.

__________________

Nope, didn't miss it at all; it's simply not as clear cut as it may appear.

The phrase "if the parties expressly agree in a written instrument signed by them that the work shall be considered a work made for hire" is not a strict requirement, but rather an affirmative defense against a claim of ownership made by the hired party.

As an example of how ownership might pass to the client/patron in the case where there is a written contract, and such phrase or equivalent is absent, consider the following.

The hired party presents the patron/client with a written contract prepared by the hired party or his agent. Such contract contains a provision that copyright ownership shall accrue to the hired party. The patron/client strikes out such provision, initials said alteration, signs the contract, and the hired party proceeds to perform the agreed upon work. As the patron/client has clearly rejected the hired party's claim to copyright ownership, the hired party's act of completing the work constitutes a ratification of the amended contract, and has therefore relinquished his claim of copyright ownership.

This is but a single example of the several ways in which the patron/client might retain copyright ownership even in the absence of the condition above set forth.

__________________
The Penn State Ticket Man http://www.pennstateticketman.com
http://www.happyvalleytickets.com http://www.hounddogtours.com

Read the case: FindLaw | Cases and Codes

Somehow you're turning a statutory requirement into an affirmative defense. I see no rebuttable or irrebuttable presumptions in the statutory construction.

Your example of striking out contractual provisions with the initials of one party is going to be a question of state law, despite the fact that you'll be battling it out in Federal court. If the court is convinced that both parties saw the strike out and the initials, then there is a 'meeting of the minds' and the statutory requirement is met; assuming no novel Statute of Frauds defense is asserted prohibiting unilateral strike outs.

In ten years of practicing law, I have had ONE case involving copyright and nevertheless they were in state court. It was a dispute over a wedding album; the quality of the album with a counterclaim that the maker was using one of the pictures on their website to demonstrate the quality of their work. Since they were in state court, it was a state-based claim that the photographer was wrongfully using the wedding couple's 'name, image or likeness.' - It settled, so there was no ruling.

__________________

This page is not responding; I'll give it another try later.

A plain reading of the cited phrase finds that it states what result will accure if a certain written contractual agreement is extant; it does not make any statement to the effect that the contrary result will accrue in the absence of such agreement.

In the realm of Contract Law at large, and particularly when Contracts of Adhesion are in play, the kinds of possible disputes and outcomes are endless.

__________________
The Penn State Ticket Man http://www.pennstateticketman.com
http://www.happyvalleytickets.com http://www.hounddogtours.com

Seems to me this is kinda going in a big circle.

Employee-employer relationship excluded...

To be considered a "work for hire" (in the eyes of the law) is conditional. If the conditions are met, the rights belong (default) to the purchaser provided there is no specific agreement to the contrary. If the conditions are not met the rights belong (default) to the "creator".

Dave

__________________
Religious-Jewelry Blog - Deep Link Directory - Religious Jewelry

The take-away point here is that "web design" is not immune to being deemed "work for hire."

__________________
The Penn State Ticket Man http://www.pennstateticketman.com
http://www.happyvalleytickets.com http://www.hounddogtours.com

You´re using an example to proof you´re right. And you are right in case of that example.

But the arguement is not about that example.

Yep,.. don't you love it? You know,.. it's like the Indy 500 races... Lots of fun if you´re in one of the cars participating in the race, and extremely boring to watch from the side.


My conclusion too.

__________________
FREE SEO ! Really? YES! All you have to do is implement it!
Follow me on Twitter PeterIMC

__________________
The Penn State Ticket Man http://www.pennstateticketman.com
http://www.happyvalleytickets.com http://www.hounddogtours.com

From my understanding, correct. The statutory definition *can* be applied, it meets one of the 9 categories, *can* be part of a written agreement specifying such.

lol @ Peter... I like watching racing... not open wheel though. NASCAR fan.

Dave

__________________
Religious-Jewelry Blog - Deep Link Directory - Religious Jewelry

Unless the statutory requirements are met, the court will not find that the work is a 'work made for hire' - you would have to find a case that would either carve out exceptions to the requirement.

In CCNV v. Reid, Reid was found to be an independent contractor, the Supreme Court concluded that the work was not "prepared by an employee" under § 101(1). Nor was the sculpture a "work made for hire" under the second subsection of § 101: 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. [CCNV apparently conceded that the 2nd requirements were not met and the case focused on the first step, or agency analysis] The Supreme Court suggested that the sculpture nevertheless may have been jointly authored by CCNV and Reid and remanded for a determination whether the sculpture is indeed a 'joint work.'

__________________

Given that it has already been determined that strict adherence to the letter of the phrase in question is not the only way in which an agreement of such kind need be evidenced, such that, while such strict adherence is sufficient, it is not necessary, I fail to see how such strict adherence can be held to be a "statutory requirement."

__________________
The Penn State Ticket Man http://www.pennstateticketman.com
http://www.happyvalleytickets.com http://www.hounddogtours.com

No, it hasn't, you simply made the assertion that the writing is not a 'strict' requirement. The example that you provided (a unilateral strike out of a contractual provision) MIGHT be ruled to be a 'writing' (for purposes of the Copyright Act) depending on the state that you are in. What you need is a Federal case interpreting 17 U.S.C. Section 101 (paragraph 2) - the language is "expressly agree in a written instrument"

So I looked some up:

53 F.3d 549
(Playboy v. Dumas) - start reading here: A. The Writing Requirement
(This is an interesting case)

Also found a nice little article about it too:

Playboy and the Work Made For Hire Agreement

But in Schiller & Schmidt, Inc. v. Nordisco Corp., 969 F.2d 410 (7th Cir.1992), that Court held that in order to be a valid work made for hire agreement the parties not only must have agreed before the work was commenced that the transfer of rights would be as a work made for hire but, more importantly, the actual agreement must have been signed by the parties prior to work having been even commenced.

I have to run, so if I messed up a quote here let me know.....

__________________