Best Business Practices for Photographers [113]
In the case of Playboy Enters., Inc. v. Dumas1, Playboy and Dumas were arguing over ownership of works the artist Patrick Nagel had produced for or were commissioned by Playboy and that were published by them. (Dumas, as in Jennifer Dumas, was the widow of Patrick Nagel.) No contract or other formalized document existed that would outline the terms of ownership, save for what Playboy placed on the back of every check that was required to be endorsed by the recipient prior to deposit. The Court, in reviewing this case, first held:
We therefore find that the 1976 Act requires that the parties agree before the creation of the work that it will be a work made for hire. We are not convinced, however, that the actual writing memorializing the agreement must be executed before the creation of the work.
1 53 F.3rd 549 (2d. Circuit, 1995)
Further, the Court reviewed the differing language on the backs of the checks. Between 1974 and 1979, the back of the check reads:
Any alteration of this legend agreement voids this check. By endorsement of this check, payee acknowledges payment in full for the assignment to Playboy Enterprises, Inc. of all right, title and interest in and to the following items: (a description of a painting followed)
Because this language does not specifically state "work made for hire" or "work for hire," it does not fulfill §101(2) of the Copyright statute, holding that "the parties expressly agree in a written instrument signed by them that the work shall be considered a work made for hire." As a result, the courts found that all works between January 1, 1978 (the date upon which the 1976 Copyright Act, as amended, went into effect) and July of 1979 were not subject to the "work made for hire" term.
However, the Court then examined the changed check language, which did meet the §101(2) requirement. The second check back was used between September of 1979 and March of 1981 and reads:
Any alteration of this legend agreement voids this check. By endorsement, Payee acknowledges payment in full for services rendered on a work-made-for-hire basis in connection with the Work named on the face of this check, and confirms ownership by Playboy Enterprises, Inc. of all right, title and interest (except physical possession), including all rights of copyright, in and to the Work.
A third revision, which went into place in March of 1981, following on the previous language, and was used until May of 1984, reads:
Any alteration of this legend agreement voids this check. It contains the entire understanding of the parties and may not be changed except by a writing signed by both parties. By endorsement, Payee: acknowledges payment in full for the services rendered on a work-made-for-hire basis in connection with the Work named on the face of the this check and confirms ownership by Playboy Enterprises, Inc. of all right, title, and interest (except physical possession), including all right of copyright, in and to the Work.
With the previous two bodies of text being almost identical, the important part of the text is that it contains the words "work-made-for-hire," thus it meets the §101(2) requirement. The check was signed (on the front) by Playboy and by Nagel on the reverse, and although the agreement in each case was not memorialized by these signatures until after the work was performed, which would seem to make the agreement to do so invalid, the Court held that Nagel's repetitive acceptance of these "back of the check" agreements constituted an ongoing understanding of a WMFH agreement that would create an expectation that each subsequent check would carry the same language. There is extensive additional information online about this