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 has become the proprietor of the original copyright because it was made by an employee ‘for hire,’ the right of renewal goes with it, unlike an assignment.” The rationale of this doctrine, which is embodied in Section 24, has been said to be “that the motivating factor in producing the work was the employer who induced the creation….” Note, Renewal of Copyright—Section 23 of the Copyright Act of 1909 [now Section 24], 44 Colum.L.Rev. 712, 716 (1944). See also Brattleboro Publishing Co. v. Winmill Publishing Corp., 369 F.2d 565, 567 (2d Cir. 1966) (“there is a presumption … that the copyright shall be in the person at whose instance and expense the work is done.”). In the present case appellant itself says in its brief that “arrangements were made through [Berlin] for a copy of the entire musical score of the film cartoon to be forwarded by Disney with the express intention of having Ronell create a popular song inspired by the cartoon.”

The purpose of the statute is not to be frustrated by conceptualistic formulations of the employment relationship. In Brattleboro Publishing Co., supra, this Court held that advertisements designed and printed by a newspaper, obviously at the “instance” of the advertiser, were done for hire. The Court expressly applied the statutory work for hire doctrine to the case of an independent contractor, 369 F.2d at 568, relying in part on Yardley v. Houghton Mifflin Co., 108 F.2d 28 (2d Cir. 1939), cert. denied, 309 U.S. 686, 60 S.Ct. 891, 84 L.Ed. 1029 (1940), where it was held that one who commissions an artist to paint a mural owns all rights to its reproduction. See also Dielman v. White, 102 F. 892 (C.C.D.Mass.1900), which reached the same result, although the court expressly noted that the “subject of the design [was] largely [the designer’s] choice.” Id. at 892. See Lin-Brook Builders Hardware v. Gertler, 352 F.2d 298 (9th Cir. 1965).

Appellant argues that we have held that “an essential element of the employer-employee relationship, [is] the right of the employer ‘to direct and supervise the manner in which the writer performs his work,’ ” Donaldson Publishing Co., supra, 375 F.2d, at 643, quoting Nimmer, Copyright § 62.31 (1964) [now § 62.2 (1971)], and that that “right” is not found in the present case. However, the trial court found that employees of Berlin did in fact make some revisions in Miss Ronell’s work. Moreover since Disney had control of the original song on which Miss Ronell’s work was based, Disney (and Berlin, with Disney’s permission), at all times had the right to “direct and supervise” Miss Ronell’s work.

The Court in Donaldson, supra, 375 F.2d at 643, listed as among the factors that show that there was no employment for hire, the absence of a fixed salary and the author’s “freedom to engage in profitable outside activities without sharing the proceeds with” the alleged employer. Id. The absence of a fixed salary, however, is never conclusive, see Brattleboro Publishing Co., supra; Nimmer, Copyright § 62.2 (1971), nor is the freedom to do other work, especially in an independent contractor situation, Brattleboro Publishing Co., supra. Donaldson was quite different from the present case since it involved an author who was the dominant person in the corporation alleged to be his employer. In such a situation it could not be said that his work was done at the “instance” of the corporation.