A Tale of Two Superhero Journalists

Today we have a quick post about copyright, works for hire, and the difference between independent contractors and employees.

Peter Parker (aka Spider-Man) and Clark Kent (aka Superman) are both journalists: Parker is a freelance photographer who primarily sells his work to The Daily Bugle and Kent is a reporter for The Daily Planet.  In order to publish their photographs and stories, the newspapers must have either own the copyright to the photo or story or have a license.  As it turns out, the law treats Parker and Kent differently because of the different relationship each journalist has with their respective newspapers.

In general, copyright belongs to the author of a new work by default.[1]  This means that when Peter Parker snaps a picture of Spider-Man, Parker owns the copyright in the work.  When Parker sells a photo to the Bugle he either also sells the copyright or at least grants the Bugle a license to use the photo.  This gives Parker leverage to potentially sell the same photo to multiple newspapers or to charge the Bugle a premium for an exclusive, at least if he can talk J. Jonah Jameson into it.

The situation is different for Clark Kent.  As an employee of The Daily Planet, works that Kent prepares within the scope of his employment (i.e. stories he writes as part of his job as a reporter) are “works made for hire.”[2]  The employer owns the copyright in a work for hire unless explicitly agreed otherwise.[3]  This means that Kent has no rights in the stories he writes: he can’t sell them to another paper or reprint them on a blog, for example.

So how do the courts decide if someone is an employee for copyright purposes?  The Supreme Court has held that the courts should use a long list of factors derived from the common law of agency, including who provides the tools for the work; the duration of the relationship between the parties; whether the hiring party has the right to assign additional projects to the hired party; and the extent of the hired party’s discretion over when and how long to work.[4]  Unsurprisingly, these factors show that Parker is an independent contractor while Kent is clearly an employee.