Picture Music, Inc. v. Bourne, Inc., 457 F.2d 1213 (2d Cir. 1972). · Go Syfert
Picture Music, Inc. v. Bourne, Inc., 457 F.2d 1213 (2d Cir. 1972). Cases Citing This Book View Copy Cite
156 citation events (66 in the last 25 years) across 19 distinct courts.
Treatment trajectory · 1972 → 2026 · click a year to view as-of
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Cited for
At page 1216 Establishing work-for-hire status under copyright law26 citing casesthe absence of a fixed salary2 citing courts put it this way · 25 listed here
  • Urbont v. Sony Music Ent., 100 F. Supp. 3d 342 (S.D.N.Y. 2015).published 6 cites
    ([S]ince 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.)
  • Urbont v. Sony Music Ent., 831 F.3d 80 (2d Cir. 2016).published 2 cites
    “The absence of a fixed salary, however, is never conclusive, nor is the freedom to do other work”
  • Marvel Characters, Inc. v. Kirby, 726 F.3d 119 (2d Cir. 2013).published
    But we effectively adopted the union of these two approaches in Picture Music, Inc. v. Bourne, Inc., 457 F.2d 1213, 1216 (2d Cir.1972), relying on both work-for-hire and implied assignment cases to conclude that an independent contractor’s…
  • Marvel Worldwide, Inc. v. Kirby, 777 F. Supp. 2d 720 (S.D.N.Y. 2011).published 3 cites
    Inc. v. Bourne, Inc., 457 F.2d 1213, 1216 (2d Cir.1972). “[T]he hallmark of ‘an employment for hire’ is whether the employer could have exercised the requisite power to control or supervise the creator’s work.” Playboy, 53 F.3d at 554 (emp…
  • Warren Publ'g Co. v. Spurlock, 645 F. Supp. 2d 402 (E.D. Pa. 2009).published
    An important factor in this inquiry is whether the employer has the right to “direct and supervise the manner in which the writer performs his work.” Id. (quoting Picture Music, Inc. v. Bourne, Inc., 457 F.2d 1213, 1216 (2d Cir.1972)).
  • Siegel v. Time Warner Inc., 496 F. Supp. 2d 1111 (C.D. Cal. 2007).published
    In this regard defendants cite to Estate of Burne Hogarth v. Edgar Rice Burroughs, Inc., 342 F.3d 149, 163 (2nd Cir.2003) and Picture Music, Inc. v. Bourne, Inc., 457 F.2d 1213, 1216-17 (2nd Cir.1972).
  • Warren v. Fox Fam. Worldwide, Inc., 328 F.3d 1136 (9th Cir. 2003).published 2 cites
    In addition to noting that the presence of royalties only "generally" weighs against a work-for-hire relationship, Playboy cites Picture Music, Inc. v. Bourne, Inc., 457 F.2d 1213, 1216 (2d Cir. 1972), for the proposition that "[t]he absen…
  • Archie Comic Publications, Inc. v. DeCarlo, 258 F. Supp. 2d 315 (S.D.N.Y. 2003).published
    Picture Music, Inc. v. Bourne, Inc., 457 F.2d 1213, 1216 (2d Cir.1972). 83 .
  • Martha Graham Sch. & Dance Found., Inc. v. Martha Graham Ctr. of Contemporary Dance, Inc., 224 F. Supp. 2d 567 (S.D.N.Y. 2002).published
    That court has also 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.” Id. (quoting Picture Music, Inc. v. Bourne…
  • Warren v. Fox Fam. Worldwide, Inc., 171 F. Supp. 2d 1057 (C.D. Cal. 2001).published 2 cites
    (the absence of a fixed salary)
Show 15 more citing cases
  • Nat'l Ctr. for Jewish Film, Inc. v. Goldman, 943 F. Supp. 113 (D. Mass. 1996).published
    The Second Circuit has adopted the “instance and expense” test as well, see Brattleboro Publishing Co. v. Winmill Publishing Corp., 369 F.2d 565, 567-68 (2d Cir.1966), and has defined the test as being met.“when the ‘motivating factor in p…
  • Playboy Enter., Inc. v. Dumas, 53 F.3d 549 (2d Cir. 1995).published 3 cites
    We adopted that holding the next year in Brattleboro Publishing Co. v. Winmill Publishing Corp., 369 F.2d 565, 567-68 (2d Cir.1966), in which we held that an independent contractor is an "employee" and a hiring party an "employer" for purp…
  • Playboy Enter., Inc. v. Dumas, 53 F.3d 549 (2d Cir. 1995).published 3 cites
    We have since defined the “instance and expense” test as being met “when the ‘motivating factor in producing the work was the employer who induced the creation.’ ” Siegel v. National Periodical Publications, Inc., 508 F.2d 909, 914 (2d Cir…
  • Playboy Enter., Inc. v. Dumas, 831 F. Supp. 295 (S.D.N.Y. 1993).published
    The seminal statement of the central consideration in the examination is that the “ ‘motivating factor in producing the work was the employer who induced the creation____’” Siegel, 508 F.2d at 914 (2d Cir.1974) (quoting Picture Music, Inc.…
  • Merch. v. Lymon, 828 F. Supp. 1048 (S.D.N.Y. 1993).published
    (setting forth factors in work-for-hire under 1909 Act)
  • Cmty. for Creative Non-Violence v. Reid, 490 U.S. 730 (1989).published
    See, e. g., Siegel v. National Periodical Publications, Inc., 508 F. 2d 909, 914 (CA2 1974); Picture Music, Inc. v. Bourne, Inc., 457 F. 2d 1213, 1216 (CA2), cert. denied, 409 U. S. 997 (1972); Scherr v. Universal Match Corp., 417 F. 2d 49…
  • Real Est. Data, Inc. v. The Sidwell Co., & Sidwell Studio, Inc., 809 F.2d 366 (7th Cir. 1987).published
    Brattleboro Publishing Co., 369 F.2d at 568 ; Picture Music, Inc. v. Bourne, Inc., 457 F.2d 1213, 1216 (2d Cir.1972).
  • Aldon Accessories Ltd. v. Spiegel, Inc., 738 F.2d 548 (2d Cir. 1984).published
    See Epoch Producing Corp. v. Killiam Shows, Inc., 522 F.2d 737, 744 (2d Cir.1975), cert. denied, 424 U.S. 955 , 96 S.Ct. 1429 , 47 L.Ed.2d 360 (1976); Picture Music, Inc. v. Bourne, Inc., 457 F.2d 1213, 1216-17 (2d Cir.), cert. denied, 409…
  • Cliff May v. Morganelli-Heumann & Assocs., 618 F.2d 1363 (9th Cir. 1980).published
    What is necessary is that the artist produce the work at the instance and expense of the employer (or commissioning party), Brattleboro, 369 F.2d at 567 ; Picture Music, Inc. v. Bourne, Inc., 457 F.2d 1213, 1216 (2d Cir.), cert. denied, 40…
  • Epoch Producing Corp., & Cross-Appellant v. Killiam Shows, Inc., & Cross-Appellees. Killiam Shows, Inc., Third-Party v. Raymond Rohauer & Jay Ward Prods., Inc., Third-Party, 522 F.2d 737 (2d Cir. 1975).published
    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…
  • Epoch Producing Corp. v. Killiam Shows, Inc., 522 F.2d 737 (2d Cir. 1975).published
    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…
  • Jerome Siegel & Joseph Shuster v. Nat'l Periodical Publications, Inc., 508 F.2d 909 (2d Cir. 1974).published
    Picture Music, Inc. v. Bourne, Inc., 457 F.2d 1213, 1216 (2d Cir.), cert. denied, 409 U.S. 997 , 93 S.Ct. 320 , 34 L.Ed.2d 262 (1972).
  • Siegel v. Nat'l Periodical Publications, Inc., 364 F. Supp. 1032 (S.D.N.Y. 1973).published
    Even if the relationship between Detective and plaintiffs was not a classic employment relationship, the Second Circuit’s decision on appeal in Picture Music, Inc. v. Bourne, 457 F.2d 1213, 1216-1217 (2d Cir. 1972), requires a finding that…
  • Ward v. Nat'l Geographic Soc'y, 208 F. Supp. 2d 429 (S.D.N.Y. 2002).published 2 cites
    See id. at 554 (quoting Picture Music, Inc. v. Bourne, Inc., 457 F.2d 1213, 1216 (2d Cir.), cert denied, 409 U.S. 997 , 93 S.Ct. 320 , 34 L.Ed.2d 262 (1972) (in turn quoting Donaldson Pub.
  • Iris Arc v. S.S. Sarna, Inc., 621 F. Supp. 916 (E.D.N.Y. 1985).published
    Thus a contractor who works under the supervision and direction of the hiring party is considered to be an “employee” acting “within the scope *920 of employment.” Id. at 552 ; see also Picture Music, Inc. v. Bourne, Inc., 457 F.2d 1213, 1…
At page 1217 Determining work for hire based on controlling factors12 citing casesholding a work is deemed for hire where the employer took the "initiative in engaging" the author to create the work4 citing courts put it this way
Show 2 more citing cases
  • Markham Concepts, Inc. v. Hasbro, Inc., 355 F. Supp. 3d 119 (D.R.I. 2019).published
    (finding the song "Who's Afraid of the Big Bad Wolf" a work-for-hire because commissioning parties had "the power to accept, reject, or modify [the composer's] work)
  • Siegel v. Warner Bros. Ent. Inc., 658 F. Supp. 2d 1036 (C.D. Cal. 2009).published
    (concluding that the fact the employer took the “initiative in engaging” the author to create the work rendered it as one made for hire)
At page 1215 “upon reconsidera 773 tion the district court again found that under the work-for-hire doctrine, the county retains ownership of the copyrights.”1 citing casethe opinion's own words at *1215, quoted by 1 later opinions
Other citing cases11 with no pin cite or quoted language on record
Show 1 more citing case
Retrieving the full opinion text from the archive…
PICTURE MUSIC, INC., Plaintiff-Appellant,
v.
BOURNE, INC., Defendant-Appellee
330, Docket 71-1222.
Court of Appeals for the Second Circuit.
Apr 3, 1972.
Published opinion
457 F.2d 1213
1972 U.S. App. LEXIS 10318
M. William Krasilovsky, New York City (Andrew J. Feinman, Feinman & Krasilovsky, Milton Rosenbloom, O’Brien, Driscoll, Raftery, Rosenbloom & Grainger, New York City, on the brief), for appellant., Walter S. Beck, New York City (Phillips, Nizer, Benjamin, Krim & Ballon, New York City, on brief), for appellee.
Hays, Oakes, Clarie.
Cited by 83 opinions  |  Published
Reporter's Syllabus editorial summary, not part of the Court's opinion

M. William Krasilovsky, New York City (Andrew J. Feinman, Feinman & Krasilovsky, Milton Rosenbloom, O'Brien, Driscoll, Raftery, Rosenbloom & Grainger, New York City, on the brief), for appellant.

Walter S. Beck, New York City (Phillips, Nizer, Benjamin, Krim & Ballon, New York City, on brief), for appellee.

Before HAYS and OAKES, Circuit Judges, and CLARIE, District Judge.*

HAYS, Circuit Judge:

Lead Opinion

HAYS, Circuit Judge:

This is an appeal from a judgment of the United States District Court for the Southern District of New York, which held that appellant had no copyright interest in the song “Who’s Afraid of the Big Bad Wolf,” and that appellant had infringed appellee’s copyright in the song. The opinion of the district court is reported at 314 F.Supp. 640 (S.D.N.Y.1970), and the facts are set out more fully there.

In May, 1933, Walt Disney Productions, Inc. released an animated cartoon film entitled “The Three Little Pigs.” The film contained a musical score, portions of which agents of Disney and Irving Berlin, Inc., appellee’s predecessor in interest, believed could be adapted as a popular song. With Disney’s approval Berlin asked Ann Ronell, appellant’s predecessor in interest, to assist in the adaptation; she did so, rearranging the musical themes in collaboration with an employee of Berlin, and arranging the existing lyrics and adding new ones of her own. The trial court found that the new song was revised somewhat by another employee of Berlin and approved by Disney. In exchange for an agreement to pay certain royalties, Disney assigned-all its rights in the new song to Berlin,[1] 314 F.Supp. at 643. Disney later agreed that either one-third or one-fourth of its royalties should be paid to Miss Ronell for her services.[2]

In 1960, the twenty-eighth year of the copyright, when the right to apply for a renewal accrued, 17 U.S.C. § 24 (1970), Miss Ronell for the first time asserted a one-half ownership interest in the copyright as a joint author, and obtained registration in her name, while Bourne, Berlin’s assignee, registered as “proprietor.” [3] In the present action,[*1215] appellant, as Miss Ronell’s assignee, seeks an adjudication that since 1960 it owned one-half interest in the copyright of the song, together with an accounting of one-half the profits from that date. Appellee has counterclaimed for infringement, alleging as a basis for its claim a new edition of the song published by appellant in 1961. The trial court rejected appellant’s claim of ownership and sustained appellee’s claim of infringement.

Bourne offered alternative theories in support of its claim to total ownership of the song: (1) that Miss Ronell’s contribution was not substantial enough to constitute authorship, and (2) that her contribution was “done for hire,” see 314 F.Supp. at 644, and that the “proprietor” was thus entitled to the renewal copyright under Section 24 of the Copyright Act, 17 U.S.C. § 24 (1970) [4] In finding for the appellee, 314 F.Supp. at 647, the trial court appears to have re-

lied principally on the first theory, though it also suggests a theory of assignment in its finding that the conduct of the parties shows that Miss Ronell intended to convey all rights to the work in return for royalties and credits, id. at 652-653. Though the trial court discussed the work for hire doctrine, id. at 650-651, it did not explicitly rule on that issue.

We affirm the judgment, but do so on the ground that the findings of the trial court establish the conclusion that Miss Ronell’s contribution was work done for hire within the meaning of that term as it is used in the statute.[5] In view of this result we need not reach the issue of whether Miss Ronell’s efforts were sufficient to make her an author, or whether she assigned her rights.

As this Court said in Shapiro, Bernstein & Co. v. Bryan, 123 F.2d 697, 700 (2d Cir. 1941), “when the employer[*1216] 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.[6] 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.[7]

[*1217] In short, the “motivating factors” in the composition of the new song, “Who’s Afraid of the Big Bad Wolf,” were Disney and Berlin. They controlled the original song, they took the initiative in engaging Miss Ronell to adapt it, and they had the power to accept, reject, or modify her work. She in turn accepted payment for it without protest, except as to the amount, for 27 years. That she acted in the capacity of an independent contractor does not preclude a finding that the song was done for hire. We so find, and therefore the right to renew the copyright in the song in 1960 accrued exclusively to appellee, the “proprietor.”

Affirmed.

1

Berlin obtained the copyright in the new song in its own name, crediting authorship to Miss Ronell and Frank E. Churchill, the Disney employee who had composed the original song.

2

Miss Ronell claimed that the parties had agreed on one-third, but she eventually dropped the issue and accepted one-fourth of Disney’s share from 1933 to 1960. 314 F.Supp. at 643.

3

It is apparently customary for the Register of Copyrights to allow conflicting[*1215] claimants to register, without making any determination as to the validity of their claims. See Ringer, Renewal of Copyright, in 1 The Copyright Society of the U.S.Á., Studies on Copyright 537 (1963).

4

§ 24. Duration; renewal and extension The copyright secured by this title shall endure for twenty-eight years from the date of first publication, whether the copyrighted work bears the author’s true name or is published anonymously or under an assumed name: Provided, That in the case of any posthumous work or of any periodical, cyclopedic, or other composite work upon which the copyright was originally secured by the proprietor thereof, or of any work copyrighted by a corporate body (otherwise than as assignee or licensee of the individual author) or by an employer for whom such work is made for hire, the proprietor of such copyright shall be entitled to a renewal and extension of the copyright in such work for the further term of twenty-eight years when application for such renewal and extension shall have been made to the copyright office and duly registered therein within one year prior to the expiration of the original term of copyright: And provided further, That in the case of any other copyrighted work, including a contribution by an individual author to a periodical or to a cyclopedic or other composite work, the author of such work, if still living, or the widow, widower, or children of the author, if the author be not living, or if such author, widow, widower, or children be not living, then the author’s executors, or in the absence of a will, his next of kin shall be entitled to a renewal and extension of the copyright in such work for a further term of twenty-eight years when application for such renewal and extension shall have been made to the copyright office and duly registered therein within one year prior to the expiration of the original term of copyright: And provided further, That in default of the registration of such application for renewal and extension, the copyright in any work shall determine at the expiration of twenty-eight years from first publication.

5

We may uphold the judgment on any theory which finds support in the record, regardless of the trial court’s conclusions. Helvering v. Gowran, 302 U.S. 238, 245-246, 58 S.Ct. 154, 82 L.Ed. 224 (1937).

In reviewing a determination that a work was or was not done for hire, we are not bound by the “clearly erroneous” standard. Donaldson Publishing Co. v. Bregman, Vocco & Conn, Inc., 375 F.2d 639, 641 (2d Cir. 1967), cert. denied, 389 U.S. 1036, 88 S.Ct. 768, 19 L.Ed.2d 823 (1968).

6

That case involved a construction of the phrase “works for hire” in Section 26 of the Copyright Act, 17 U.S.C. § 26 (1970), but its reasoning is equally applicable to Section 24.

7

Miss Ronell had previously composed works for Disney and Berlin, including “Mickey Mouse and Minnie’s in Town” and “Silly Symphony.” Appellant claims that Miss Ronell assigned in writing all her interest in these compositions. The absence of a writing in the instant case, however, does not suggest an intent to retain any rights; rather, especially in view of Miss Ronell’s 27-year silence, it indicates that she assumed that she had no claim that would need to be assigned.

Concurrence

OAKES, Circuit Judge

(concurring):

I concur in the result.