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Cases - Siegel Superman 1973 74 Fawcett Kryptonite Others

Cases - Siegel Superman 1973 74 Fawcett Kryptonite Others

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Published by Jeff Trexler
A bunch of cases.
A bunch of cases.

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Published by: Jeff Trexler on Jun 12, 2013
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PLAYBOY ENTERPRISES, INC. and SPECIAL EDITIONS, LTD., Plaintiffs-Counter-Defendants, Appellants-Cross-Appellees, -v.- JENNIFERDUMAS and JENNIFER DUMAS, INC., Defendants-Counter-Claimants, Appellees-Cross-Appellants.Docket Nos. 94-7500L, 94-7542XAPUNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT53 F.3d 549; 1995 U.S. App. LEXIS 10191; 34 U.S.P.Q.2D (BNA) 1737; Copy. L.Rep. (CCH) P27,410; 132 A.L.R. Fed. 703December 8, 1994, ArguedMay 5, 1995, DecidedDISPOSITION:
[**1] Playboy Enterprises, Inc. andSpecial Editions, Ltd. (collectively "Playboy") appealfrom an order of the United States District Court for theSouthern District of New York, Tenney, J., dismissingPlayboy's claim for declaratory judgment that Playboy isthe sole owner of the copyright of approximately 285works of art created by Patrick Nagel which appeared inPlayboy magazine from 1974 to 1984, and granting thecounterclaim for copyright infringement of JenniferDumas and Jennifer Dumas, Inc. Judgment is affirmed inpart, reversed in part, and vacated in part, and the case isremanded.
DONALD B. VERRILLI, JR., Washington,DC (Mark D. Harris, Jenner & Block; Kenneth P.Norwick, Norwick & Schad, New York, NY, of counsel),for Plaintiffs-Counter-Defendants,Appellants-Cross-Appellees.ROGER L. ZISSU, New York, NY (Lisa Pearson,Laurence S. Rickles, Weiss Dawid Fross Zelnick &Lehrman, P.C., of counsel), forDefendants-Counter-Claimants,Appellees-Cross-Appellants.(Alan J. Hartnick, New York, NY (Lawrence E.Abelman, Jeffrey A. Schwab, Nancy J. Mertzel, Abelman, Frayne & Schwab, of counsel)), for MagazinePublishers of America, Inc., Amicus Curiae.(Charles D. Ossola, [**2] Alexandria, VA (Lowe, Price,LeBlanc & Becker, of counsel)), for American Society of Media Photographers and Graphic Artists Guild, AmiciCuriae.(Irwin Karp, Rye Brook, NY (John M. Kernochan, LawOffice of Irwin Karp, of counsel)), for Committee forLiterary Property Studies, National Writers Union, andVolunteer Lawyers for the Arts, Amici Curiae.
Before: OAKES, CARDAMONE andWINTER, Circuit Judges.
[*551] OAKES,
Senior Circuit Judge:
Appellants Playboy Enterprises, Inc. and SpecialEditions, Ltd. (collectively "Playboy") appeal from a judgment entered on April 20, 1994 in the United StatesDistrict Court for the Southern District of New York,Charles H. Tenney,
following a bench trial and theentry of two opinions, dated September 9, 1993 andDecember 20, 1993 and reported at 831 F. Supp. 295 and840 F. Supp. 256. The order dismissed Playboy's claimfor declaratory judgment that Playboy is the sole ownerof all right, title and interest of the copyrights of approximately 285 works of art created by Patrick NagelPage 1
which appeared in
magazine from 1974 to 1984.The order also granted the counterclaim for copyright[*552] infringement of appellees [**3] Jennifer Dumas(Nagel's widow) and Jennifer Dumas, Inc. (collectively"Dumas"). Judgment is affirmed in part, reversed in part,and vacated in part, and the case is remanded.
The following is not disputed by the parties. PatrickNagel was a freelance artist who from 1974 until hisdeath in 1984 produced approximately 285 pieces of artwork which were published in
magazine.From August 1975 until July 1984, at least one Nagelpainting appeared in every issue of 
At theoutset, Nagel was given specific instructions by Playboyas to the content of the paintings--Playboy requestedillustrations to accompany specific articles or particularletters for the 'Advisor' section of the magazine. Thepaintings were, not surprisingly, generally of nudewomen, in various poses. Sometime after January 1977but before August 1978, Playboy stopped giving Nagelany specific instructions. Nagel and Playboy settled into acourse of conduct whereby Nagel would routinely submitpaintings and Playboy would generally publish his work.As the district court found, "as time went on, [Nagel] wasgiven greater freedom to submit the paintings he wanted,which apparently [**4] matched what Playboy wasinterested in publishing."
Playboy Enterprises, Inc. v. Dumas,
831 F. Supp. 295, 300 (S.D.N.Y.),
840F. Supp. 256 (S.D.N.Y. 1993).From 1974 until 1977, Playboy kept each piece of original artwork that was created for and delivered to itby contributors, including Nagel. Effective April 1, 1977,Playboy adopted a new policy of returning the originalworks to contributors.
Playboy stamped the followinglegend on each piece of work it returned:PLAYBOY'S ARTWORKREPRODUCTIONPROHIBITED WITHOUTPLAYBOY'S PERMISSION1 The parties agree that physical possession of the original work is not determinative of theownership of the reproduction rights to the work.Playboy paid Nagel for each of the publishedpaintings by check after Nagel delivered the work. Hewas paid $ 150 to $ 250 for a spot illustration, $ 800 for afull-page illustration, and $ 1200 for a double-pagespread. Each check bore a legend endorsement.The first 104 checks, issued between [**5] 1974 andJuly 1979, were stamped with the following legend("Legend A"):Any alteration of this legend agreementvoids this check. By endorsement of thischeck, payee acknowledges payment infull for the assignment to PlayboyEnterprises, Inc. of all right, title, andinterest in and to the following items: [adescription of a painting followed].The next 60 checks, issued between September 1979 andapproximately March 1981, were stamped with thislegend ("Legend B"):Any alteration of this legend agreementvoids this check. BY ENDORSEMENT,PAYEE: acknowledges payment in full forservices rendered on a work-made-for-hirebasis in connection with the Work namedon the face of this check, and confirmsownership by Playboy Enterprises, Inc. of all right, title and interest (except physicalpossession), including all rights of copyright, in and to the Work.Finally, the last 94 checks, issued between March 1981and May 1984, were stamped with this legend ("LegendC"):Any alteration of this legend agreementvoids this check. IT CONTAINS THEENTIRE UNDERSTANDING OF THEPARTIES AND MAY NOT BECHANGED EXCEPT BY A WRITINGSIGNED BY BOTH PARTIES. BY [**6]ENDORSEMENT, PAYEE:acknowledges payment in full for theservices rendered on a work-made-for-hirebasis in connection with the Work namedon the face of the this check and confirmsownership by Playboy Enterprises, Inc. of all right, title, and interest (except physicalPage 253 F.3d 549, *551; 1995 U.S. App. LEXIS 10191, **2;34 U.S.P.Q.2D (BNA) 1737; Copy. L. Rep. (CCH) P27,410
possession), including all right of copyright, in and to the Work.At different times the checks were made out to PatNagel, Patrick Nagel Studios, Inc., Elias-Berman (anaccountant), Raymond MacQueen (also an accountant),or The Art [*553] Factory (Nagel's artist'srepresentative), and they were endorsed and deposited byNagel himself, his bank, his corporation, his accountantor his artist representative. These endorsed checksconstitute the only writings signed by Nagel or hisrepresentatives relating to Playboy's ownership of thecopyrights in the works produced for
In producing the paintings, Nagel used his ownequipment, tools and materials. He worked at his ownstudio, on days and times of his own choosing. He hiredhis own assistants to do work at his studio, and at no timedid Playboy withhold taxes from his pay or provide himwith employee benefits. Throughout his career, includingthe time when [**7] he was producing work for
Nagel produced art for other companies, includingAmerican Express and Bank of America. He also paintedprivately commissioned work and exhibited his paintingsin galleries.Upon Nagel's death in 1984, his widow, JenniferDumas obtained copyrights and related ownership rightsto Nagel's artwork. In 1988, she assigned all of hercopyrights in Nagel's works to Jennifer Dumas, Inc.("JDI"). Before his death, Nagel had entered into anagreement with Mirage Editions, Inc., providing for thepublication and marketing of limited editions of reproductions of certain Nagel paintings. The posters andfine art reproductions published and sold by Miragegenerated $ 21 million in sales revenues from 1984 to1990, and another $ 2.5 million in 1991 and 1992.In 1989, Dumas entered into agreements grantingreproduction rights to third parties for all Nagel workswhich had previously appeared in
magazine.Playboy brought an action in the Northern District of Illinois for copyright infringement. The parties settled thedispute by entering into an agreement which specifiedthat Dumas and Playboy would each receive a certainpercentage of the income [**8] generated by theexploitation of the Nagel works in question. Theagreement was mutually terminated effective June 1,1991.In September 1991, Playboy brought this suitseeking a declaratory judgment that it is the sole owner of all copyrights in the Nagel paintings which had appearedin
magazine. In June 1992, Playboy beganmarketing a collection of five silkscreen reproductionsand five offset productions of Nagel's artwork under thename "The Playboy Collection by Patrick Nagel." Theworks in the collection were all originally published inPlayboy magazine, and all were created after 1978. InOctober 1992, Dumas filed an amended counterclaim forcopyright infringement.In the district court, Playboy argued that Nagel hadtransferred the copyrights in question to Playboy bymeans of the legend agreements on the checks.Alternatively, it argued that the Nagel paintings were"works for hire" under both the Copyright Act of 1909and the Copyright Act of 1976, which thereby madePlayboy the "author" of the works and the owner of thecopyrights.On September 9, 1993, following a bench trial, thedistrict court issued an opinion and order holding thatNagel transferred only [**9] one-time reproductionrights to Playboy and that the Nagel works were not"works for hire." The court held, accordingly, thatPlayboy's Nagel Collection reproductions infringedcopyrights owned by Dumas. This appeal followed.
The paintings at issue in this case were producedfrom 1974 to 1984. The Copyright Act of 1976, U.S.C.Title 17, ("the 1976 Act") took effect on January 1, 1978.Accordingly, the paintings produced before that date aregoverned by the Copyright Act of 1909 ("the 1909 Act"),and the paintings produced on or after that date aregoverned by the 1976 Act.The district court chose to address first the issuewhether the copyrights were transferred to Playboy, andthen the issue whether the works were "made for hire."Because the work-for-hire issue determines the author of the works, and therefore who can later transfer thecopyright, we discuss that issue first.I.
Works For Hire Under the 1909 Act 
The 1909 Act mentioned works for hire only in thedefinition section of the statute, [*554] where itspecified that "in the interpretation and construction of Page 353 F.3d 549, *552; 1995 U.S. App. LEXIS 10191, **6;34 U.S.P.Q.2D (BNA) 1737; Copy. L. Rep. (CCH) P27,410

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