Page:Epoch Producing v. Killiam Shows.pdf/8

 1915 as “an employer for whom such work [was] made for hire,” thus making it the “author” within the Copyright Act’s definition, 17 U.S.C. § 26. In support of this theory it points (a) to the three agreements between Dixon, Majestic and Epoch, entered into on December 20, 1913, June 9, 1914, and June 14, 1915, respectively, (b) to the two copyright assignments from DWG Corp. to Epoch, dated April 17, 1915, and (c) to the Certificate of Renewal issued in 1942 by the Copyright Office to Epoch as “the proprietor of copyright in a work made for hire,” which was uncontested by Griffith during his lifetime or by his next of kin since his death.

On the basis of these documents it contends that an inference may be drawn that Majestic and/or Epoch hired D. W. Griffith to produce The Birth and that Griffith recognized Epoch’s primary right to the copyright in the film. We disagree.

In our view this evidence is clearly insufficient to permit any jury reasonably to draw the inference urged by Epoch. An inference will be upheld only if application of common experience and logic to the underlying evidence will support it. See, e. g., Bruce Lincoln-Mercury, Inc. v. Universal C. I. T. Credit Corp., 325 F.2d 2, 22 (3d Cir. 1963); United States v. Patterson, 219 F.2d 659, 661–62 (2d Cir. 1955). Here, even giving Epoch the benefit of every doubt, no such process is possible. To permit a finding that Griffith was employed for hire by Majestic or Epoch on the basis of the evidence relied upon by Epoch would be to substitute mere speculation for reason and experience. At most the evidence shows that Dixon assigned to Majestic the right to produce a motion picture based on his novel, that Majestic was to finance the production, and that Majestic may have financed Griffith’s production of the film. Even this last step toward the inference sought by Epoch stretches the reasoning process to the breaking point, since there is no showing that Majestic and/or Epoch actually supervised or paid any money for the making of the motion picture. Of importance to us, however, is the fact that the evidence sheds absolutely no light on the critical issue, which is what relationship, if any, existed between Griffith, on the one hand, and Majestic or Epoch, on the other. The evidence relied upon by Epoch does not, for instance, indicate whether Majestic and/or Epoch simply supplied capital for the production of the picture, whether they commissioned Griffith independently to produce the film, whether they “hired” Griffith as employee to do the work and, most important, whether they could have exercised the requisite power to control or supervise Griffith’s work, which is the hallmark of “an employment for hire” relationship, Picture Music, Inc. v. Bourne, Inc., 457 F.2d 1213, 1216–17 (2d Cir.), ''cert. denied'', 409 U.S. 997, 93 S.Ct. 320, 34 L.Ed.2d 262 (1972); Donaldson Publishing Co. v. Bregman, Vocco & Conn, Inc., 375 F.2d 639 (2d Cir. 1967), ''cert. denied'', 389 U.S. 1036, 88 S.Ct. 768, 19 L.Ed.2d 823 (1968). Epoch’s argument that the absence of provisions in these contracts relating to Griffith’s employment simply indicates that he, as a mere employee, had not been hired yet is wholly unsupported by any facts. In short, the evidence does not permit an inference that Epoch or Majestic employed Griffith for hire to make the motion picture.

Nor may an inference that Griffith was employed by Majestic or Epoch be drawn from the fact that DWG Corp. assigned its rights in the initial copyright to Epoch and to Dixon. Viewed most favorably to Epoch, the assignments merely evidenced a transfer of interest, which might have been motivated by a number of considerations unconnected in any way with an employer-employee relationship. One might speculate, for instance, that Griffith transferred the copyrights in recognition of past financing of his independent production of The Birth or in anticipation of a future relationship with Epoch. Absent some evidence of an employer-employee relationship, the existence of evidence