(1) A freelancer’s work can be treated as a “work for hire”
only if there’s an agreement and the work falls into one of several classes: “a
work specially ordered or commissioned for use as a contribution to a
collective work, as a part of a motion picture or other audiovisual work, as a
translation, as a supplementary work, as a compilation, as an instructional
text, as a test, as answer material for a test, or as an atlas, if the parties
expressly agree in a written instrument signed by them that the work shall be
considered a work made for hire.” 17 USC 101. A press release would not be a
work for hire, for instance.
(2) A photographer’s work would generally not qualify for
being a work for hire, either.
(3) Of course, even if a work isn’t a work for hire, the
copyright can be assigned by a signed writing. But I don’t see what that has
to do with the compelled-creation-of-expression issue. If I go into freelance
press release writing, I think I ought to be free to say to the Church of
Scientology, “No, I’m not going to write a press release for you promoting your
religious events, because I disapprove of your religion.” And that is true
regardless of who would own the copyright in the resulting press release. My
objection isn’t to being required to own a copyright. My objection is to
having to write things that I think it’s wrong for me to write.
Eugene
From: religionlaw-boun...@lists.ucla.edu
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Marci Hamilton
Sent: Saturday, August 24, 2013 10:26 AM
To: Law & Religion issues for Law Academics
Cc: Law & Religion issues for Law Academics
Subject: Re: A right not to be compelled to create expression?
Point of law-- Most freelancers are subject to work for hire agreements that
divest copyright and make the purchaser the "owner" of the speech for all
purposes.
Marci A. Hamilton
Verkuil Chair in Public Law
Benjamin N. Cardozo Law School
Yeshiva University
@Marci_Hamilton
On Aug 24, 2013, at 12:37 PM, "Volokh, Eugene"
<vol...@law.ucla.edu<mailto:vol...@law.ucla.edu>> wrote:
Well, New Mexico law covers “any establishment that provides or
offers its services ... to the public, but does not include a[n] ...
establishment that is by its nature and use distinctly private.” That does
mean that a freelance writer who only writes on behalf of a limited set of
clients, rather than offering his services to the public at large, wouldn’t be
covered by this particular statute. But a freelance writer who does promote
his services to the public would qualify, even if he exercises some
selectivity. (Indeed, Huguenin says that there are other photography
commissions she won’t take, such as for pornography, horror films, and the
like, though chances are that she won’t even be approached for them in the
first place. Conversely, my sense is that many freelance writers who offer to
hire themselves out to the public will take the great majority of jobs that
come their way, even though they too would draw the line somewhere.) So I
can’t see how such freelance writers would be immune.
But in any event, even if a freelance writer or photographer is
unselective, I can’t see how that person’s expression isn’t “her own.” To be
sure, the public might not see an unselective photographer’s/writer’s speech as
equally expressing her own ideology. But the writer or photographer would
still be creating the expression herself, using her own artistic and literary
creative judgment.
The question, then, is: Should people have a right not to be
compelled to create expression they think is wrong, just as they have a right
not to be compelled to distribute expression they think is wrong? It seems to
me that the logic of Wooley should extend equally to both rights. If Maynard
can’t be required to carry the motto “Live Free or Die” on his car, then a
Maynard who is a generally will-take-most-commissions freelance writer can’t be
required to write a press release or organizational newsletter that expresses
the view “Scientology is good.” Indeed, the requirement to actually create
expression seems much more burdensome than simply the requirement to carry a
slogan on one’s car.
Finally, note that the New Mexico Supreme Court expressly
disclaimed any argument that mere wedding photography is just too banal to be
expressive for purposes of this analysis (not that Eduardo so argued below, but
I’ve seen that argument elsewhere). “This determination [that Elane
Photography is subject to the public accommodations law] has no relation to the
artistic merit of photographs produced by Elane Photography. If Annie
Leibovitz or Peter Lindbergh worked as public accommodations in New Mexico,
they would be subject to the provisions of the NMHRA.”
Eugene
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