Natkin v. Winfrey, 111 F. Supp. 2d 1003 (N.D. Ill. 2000)

Facts: Natkin and Green, the plaintiffs, are professional “live event” photographers who had worked on the set of The Oprah Winfrey Show. Winfrey subsequently published a book which contained eleven photographs that were taken by the plaintiffs. Natkin and Green did not give their permission and instituted a copyright infringement action; they claim they were independent contractors. Winfrey claims that the photographs are not owned by the plaintiffs because they were employees of Harpo and the pictures were taken within the scope of their employment.

Issue: Whether Natkin and Green were employees of Winfrey when the photographs, which are the basis for the copyright action, were taken.

Holding: Natkin and Green were never Harpo employees. Harpo hired both photographers as independent contractors; therefore, Harpo must produce a written work made for hire agreement to successfully claim exclusive ownership of the copyrights to these photographs.

Judgment: Natkin and Green were granted a partial summary judgment on the work made for hire issue.

Reasoning: Harpo Productions choose to treat Natkin and Green as independent contractors and cannot change their position to reap a different benefit. Generally, a photographer is the author of his photographs. However, there are two relevant exceptions: (1) “work made for hire” and (2) “joint work.”

Further Discussion on the Work Made for Hire Exception:

Under the “work made for hire” exception, the works are “authored” by the hiring party. One of two elements must be met to constitute a work made for hire: (1) a work prepared by an employee within the scope of his employment; or (2) a work specially ordered or commissioned…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. Here, there was no written agreement so Winfrey argued the first element. The court applied the Reid factors (13 nonexhaustive factors from a Supreme Court decision regarding the work made for hire exception) to this argument and determined that Natikin and Green were not Harpo employees. Some of the relevant facts to this determination:

Natkin and Green used their own camera equipment and lenses, brought additional equipment (i.e. lights, backdrops), and usually processed the film themselves. They had complete discretion over the technical aspects of the shoot. Harpo Productions paid Natkin and Green as independent contractors and did not provide them with any insurance or other compensation benefits. Also, the photographers billed Harpo for their services and expenses, they did not receive regular paychecks or a salary. Finally, Harpo’s IRS reports describe the payments to Green and Natkin as “nonemployee compensation.”

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