Comment by lmm
6 months ago
> The creator of a commissioned work is the author under copyright law, the owner or copyright “holder” is the commissioner of the work or employer of the employee that created the work as a part of their job.
Nope. In cases where work for hire does apply (such as an employee preparing a work as part of their employment), the employer holds the copyright because they are considered as the author. But a work that's commissioned in the usual way (i.e. to a non-employee) is not a work-for-hire by default, in many cases cannot be a work-for-hire at all, and is certainly not a work-for-hire without written agreement that it is.
> The author may contractually retain copyright ownership per written agreement prior to creation, but this is not the default condition for commissioned, “specially ordered”, works
Nope. You must've misread this part of the law. A non-employee creator retains copyright ownership unless the work is commissioned and there is a written agreement that it is a work for hire before it is created (and it meets the categories for this to be possible at all).
> The only way an employer/commissioner would be responsible (vicarious liability) for copyright infringement of a commissioned work or work produced by an employee
What are you even trying to argue at this point? You've flipped to claiming the opposite of what you were claiming when I replied.
> duty of due diligence to ensure originality
This is just not a thing, not a legal concept that exists at all, and a moment's thought will show how impossible it would be to ever do. When someone infringes copyright, that person is liable for that copyright infringement. Not some other person who commissioned that first person to make something for them. That would be insane.
Quote the full passage of copyright law that backs any of your claims up.
"(2) 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. For the purpose of the foregoing sentence, a “supplementary work” is a work prepared for publication as a secondary adjunct to a work by another author for the purpose of introducing, concluding, illustrating, explaining, revising, commenting upon, or assisting in the use of the other work, such as forewords, afterwords, pictorial illustrations, maps, charts, tables, editorial notes, musical arrangements, answer material for tests, bibliographies, appendixes, and indexes, and an “instructional text” is a literary, pictorial, or graphic work prepared for publication and with the purpose of use in systematic instructional activities.
In determining whether any work is eligible to be considered a work made for hire under paragraph (2), neither the amendment contained in section 1011(d) of the Intellectual Property and Communications Omnibus Reform Act of 1999, as enacted by section 1000(a)(9) of Public Law 106–113, nor the deletion of the words added by that amendment—
(A) shall be considered or otherwise given any legal significance, or
(B) shall be interpreted to indicate congressional approval or disapproval of, or acquiescence in, any judicial determination,
by the courts or the Copyright Office. Paragraph (2) shall be interpreted as if both section 2(a)(1) of the Work Made For Hire and Copyright Corrections Act of 2000 and section 1011(d) of the Intellectual Property and Communications Omnibus Reform Act of 1999, as enacted by section 1000(a)(9) of Public Law 106–113, were never enacted, and without regard to any inaction or awareness by the Congress at any time of any judicial determinations."
Now your turn, quote the full passage of whatever law you think creates this "duty of due diligence" that you've been talking about.
> b) Works Made for Hire.
>In the case of a work made for hire, the employer or other person for whom the work was prepared is considered the author for purposes of this title, and, unless the parties have expressly agreed otherwise in a written instrument signed by them, owns all of the rights comprised in the copyright.
https://www.copyright.gov/title17/92chap2.html#201
You are responsible for infringing works you publish, whether they are produced by commission or employee.
Due diligence refers to the reasonable care, investigation, or steps that a person or entity is expected to take before entering into a contract, transaction, or situation that carries potential risks or liabilities.
Vicarious copyright infringement is based on respondeat superior, a common law principle that holds employers legally responsible for the acts of an employee, if such acts are within the scope and nature of the employment.
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