Page:Forward v. Thorogood (985 F.2d 604).pdf/3

 members ever conveyed, or agreed to convey, their copyright interest in the tapes to Forward.” 758 F.Supp. at 784. Rather the Band allowed Forward to keep the tapes solely for his personal enjoyment. Id. Forward’s disregard of this central finding is premised on a highly artificial attempt to claim “constructive possession” of the tapes from the outset and then to argue that any reservation by the Band at the end of the sessions was an invalid attempt to reconvey or qualify his copyright. The reality is that the Band never surrendered the copyright in the first place and the transfer of the tapes’ ownership to Forward was not a sharply defined event distinct from the reservation of the Band’s rights.

Forward argues that the district court’s finding is mistaken, pointing in particular to a 1979 check for $500 made out to him from Rounder Records on behalf of the Band. A notation indicates that the check was for an “advance option” on the tapes, and Forward argues that the check constitutes an “unambiguous admission” that he owned the copyright. The Band counters that, shortly before Forward was given the check, another demo tape made by the Band had been sold by a third party to a record company. The Band claims that, to prevent another such misadventure, it sought an option on the physical tapes held by Forward. Although Forward contests this explanation, the district court heard the evidence, chose reasonably between conflicting inferences as to the import of the check, and that is the end of the matter. See Anderson v. City of Bessemer City, 470 U.S. 564, 573–74, 105 S.Ct. 1504, 1511–12, 84 L.Ed.2d 518 (1985); Fed.R.Civ.P. 52(a).

Forward’s second theory of copyright ownership involves the “works for hire” doctrine. Under this doctrine, a judicially developed notion later codified in the Copyright Act of 1909, 17 U.S.C. § 1 et seq., an employer is deemed the “author” and copyright holder of a work created by an employee acting within the scope of employment. Although initially confined to the traditional employer-employee relationship, the doctrine has been expanded to include commissioned works created by independent contractors, with courts treating the contractor as an employee and creating a presumption of copyright ownership in the commissioning party at whose “instance and expense” the work was done. See, e.g., Murray v. Gelderman, 566 F.2d 1307, 1310 (5th Cir.1978); Brattleboro Publishing Co. v. Winmill Publishing Corp., 369 F.2d 565, 567–68 (2d Cir.1966). Forward maintains that the tapes, created at his “instance and expense,” are commissioned works to which he holds the copyright.

The district court rejected this claim, finding that the evidence did not support it. The court said that, although Forward booked and paid for the studio time, he neither employed nor commissioned the band members nor did he compensate or agree to compensate them. 758 F.Supp. at 784. While the lack of compensation may not be decisive, see, e.g., Community for Creative Non-Violence, 490 U.S. at 734, 109 S.Ct. at 2169 (donated commissioned work), the evidence as a whole amply supports the trial judge’s conclusion. Nothing suggests that the tapes were prepared for the use and benefit of Forward. Rather, the purpose was to provide demo tapes to entice a recording company. Forward was a fan and friend who fostered this effort, not the Archbishop of SaltzburgSalzburg [sic] commissioning works by Mozart.

Finally, Forward argues that he is at least a co-owner of the copyright as a “joint author” of the tape recordings. The doctrine of joint authorship, recognized at common law, is incorporated in the current Copyright Act of 1976. 17 U.S.C. § 201(a). In appraising this claim, our concern is with Forward’s musical or artistic