Cite as 117 F.Supp.2d 301 (S.D.N.Y. 2000)
ployee benefits; (4) the tax treatment of the hired party; and (5) whether the hiring party has the right to assign additional projects to the hired party.
Aymes, 980 F.2d at 861. Accord, e.g., Langman Fabrics, 160 F.3d at 111; Carter, 71 F.3d at 86; cf. Graham, 144 F.3d at 235 (“[w]e give greater weight to certain of the Reid factors”). The Aymes court indicated that these five factors should be given more weight “because they will usually be highly probative of the true nature of the employment relationship.” 980 F.2d at 861.
A. The Hiring Party’s Right to Control the Manner and Means of Creation
The first factor identified by the Reid Court—a general right of control—can be indicative of both a work-for-hire employee and an independent contractor. See, e.g., Patry 1998 Supp. at 59. Thus, in order to determine whether the hired party is an employee rather than an independent contractor, there must be evidence that the hiring party actually contributed to the aesthetic choices.
Defendants do not claim that they instructed plaintiff to use any particular camera, film or equipment. Munn only reviewed Polaroid photographs of the works in progress to ensure plaintiff was achieving the ultimate result that Munn desired. (See Munn Reply. Aff. ¶12.) Munn’s passive review is a far cry from the assertions in Langman Fabrics that the hiring party literally stood over the hired party giving her instructions in “laborious detail” concerning exactly how to create the work. Langnam Fabrics, 160 F.3d at 111–112. Indeed, it is uncontradicted that Munn remained closeted in his office throughout the shoot. (Lindner Aff. ¶13.) As in Graham, Munn’s involvement in the creation of the photographs “was minimal and … his instructions … were very general.” Graham, 144 F.3d at 235; accord Marco v. Accent Publ’g Co., 969 F.2d 1547, 1551–52 (3d Cir.1992) (photographer is not work-for-hire employee where hiring party “controlled only the subject matter and composition of the images” but not “most aspects of the work, including the choice of light sources, filters, lenses, camera, film, perspective, aperture setting, shutter speed, and processing techniques).
B. The Skill Required
Lindner had twenty-five years experience as a professional photographer when defendants hired him and defendants “do not question [plaintiff’s] application of technical skill, which was the reason he was hired.” (Defs.’ Br. at 3; Munn Reply Aff. ¶8.) The record is bereft of any evidence that defendants possessed any technical photographic skills. See Marco, 969 F.2d at 1551 (noting that defendant although himself an art director had hired a professional photographer because the photographer is “the person who makes the shot work,” and describing the photographer as “certainly skilled in the sense that Reid, the sculptor in the Reid case, was skilled”); cf. Morita v. Omni Publications, Int’l, Ltd., 741 F.Supp. 1107 (S.D.N.Y.1990) (photographer is not merely a “mechanical” extension of hiring party).
C. The Provision of Employee Benefits
There is no claim in this case that defendants provided plaintiff with any employment benefits. Cf. Carter, 71 F.3d at 86 (artists given paid vacations and other benefits stich as unemployment, life, health, and liability insurance, as well as worker’s compensation).
D. The Tax Treatment of the Hired Party
Defendants do not claim that they withheld any taxes or made any tax payments on behalf of plaintiff. Cf. Carter, 71 F.3d at 86 (artists had income and social security taxes deducted from their weekly salary).
