of “work made for hire”)[1] and 201(b) (“[i]n the case of a work made for hire, the employer or other person for whom the work was prepared is considered the author”).
There are two categories of work-for-hire: (1) works created by employees; and (2) works created by independent contractors under special order or commission. See 17 U.S.C. § 101. Although defendants have not specified which categories they claim, only the first is relevant in this case. The second category is inapplicable because photographs are not included in the § 101 list of subject matters permitting a work-for-hire agreement with independent contractors. Even if these photographs could be shoehorned into a § 101 subject matter category, they will still not qualify as a work-for-hire because there was no written agreement between the parties.
Thus, the only relevant question is whether defendants were plaintiff’s “employers” under the Copyright Act. Faced with congressional silence concerning the term “employer,” the Supreme Court created a federal common law agency test, to evaluate work-for-hire claims. See Community for Creative Non-Violence v. Reid, 490 U.S. 730, 750–751, 109 S.Ct. 2166, 2178, 104 L.Ed.2d 811 (1989); see also Patry at 377 (“[W]hile the Court referred to the Restatement of Agency for factors lower courts should apply in determining whether an individual is an independent contractor or an employee, [Reid ] adopted a federal rule of agency patterned on the common law.”).
The Reid Court identified thirteen factors to consider in determining whether a party is an employer under agency principles:
the hiring party’s right to control the manner and means by which the product is accomplished … [;] the skill required; the source of the instrumentalities and tools; the location of the work; the duration of the relationship between the parties; whether the hiring party has the right to assign additional projects to the hired party; the extent of the hired party’s discretion over when and how long to work; the method of payment; the hired party’s role in hiring and paying assistants; whether the work is part of the regular business of the hiring party; whether the hiring party is in business; the provision of employee benefits; and the tax treatment of the hired party.
490 U.S. at 751–752, 109 S.Ct. at 2178–79 (footnotes omitted). None of these is dispositive; in fact they are not even the universe of factors that can be considered. Reid, 490 U.S. at 752, 109 S.Ct. at 2179. Rather, it is the totality of the parties’ relationship that is the focus of the inquiry.
The Second Circuit has construed Reid several times. See Langman Fabrics, 160 F.3d at 110–113; Graham v. James, 144 F.3d 229, 234–35 (2d Cir.1998); Carter v. Helmsley-Spear, Inc., 71 F.3d 77, 85–88 (2d Cir.1995); Playboy Enters., Inc. v. Dumas, 53 F.3d 549 (2d Cir.1995); Aymes v. Bonelli, 980 F.2d. 857, 860–64 (2d Cir.1992). The Aymes court’s analysis of work-for-hire is the most extensive. There, the Second Circuit declined to treat all thirteen of the Reid factors as equally important or even relevant in every case. See 980 F.2d at 861. Instead of woodenly tallying the factors, the Aymes court emphasized that each factor is to be weighed according to the significance it played in the work’s creation. See 980 F.2d at, 861. Nonetheless, the Aymes court identified five of the Reid factors that are significant “in virtually every situation.” These five are:
(1) the hiring-party’s right to control the manner and means of creation; (2) the skill required; (3) the provision of em-
- ↑ Although the statutory term is “work made for hire,” it is common to shorten it to “work-for-hire,” a practice adopted here.
