E. The Hiring Party’s Right to Assign Additional Projects to the Hired Party
There is no claim in this case that the defendants had the right to assign, or in fact assigned additional projects to plaintiff after all the mirrors were photographed. Cf. Carter, 71 F.3d at 86 (hiring party had and exercised the right to assign artists to other projects without further compensation).
F. The Other Eight Reid Factors
Although the Aymes court did not require that every work-for-hire factor be analyzed, that holding should not be construed as precluding district courts from continuing the inquiry under the remaining eight Reid factors. Similarly, it need not necessarily follow that the five factors identified in Aymes will invariably be the most significant. Indeed, some of the other eight Reid factors are helpful in analyzing this case.
The source of the instrumentalities and tools factor is significant because the choice of equipment played a vital role that affected the aesthetic appearance of the photographs. (See Lindner Aff. ¶17.) The duration of the relationship between the parties also informs the analysis. In contrast to a typical employee, plaintiff was hired by defendants for the specific photo shoot in question. Defendants did not exercise any control over when and how long plaintiff would work. So too, defendants neither hired nor paid any of Lindner’s assistants. It is noteworthy that defendants are in the business of creating and selling frames, while plaintiff’s sole business is creating photographic works. Defendants have never suggested that they regularly photographed their own catalogues.
G. Work-For-Hire Conclusions
In sum, the Reid factors weigh heavily in plaintiff’s favor. Defendants’ argument that plaintiff was a work-for-hire employee because “SHL Imaging was given explicit instructions and worked under the supervision of the defendants, at their premises, photographing their property [and] … paid SHL Imaging’s expenses” is unavailing.[1] (Defs.’ Br. at 17.) Resolving all ambiguities and drawing all permissible factual inferences in favor of defendants, it is clear that defendants’ instructions were so general as to fall within the realm of unprotectible ideas. Thus, they cannot substantiate a work-for-hire authorship defense. If inevitable, routine participation sufficed to transform the hiring party into a work-for-hire author, Reid would-be eviscerated and the law would retrogress to the “actual supervision and control” rule established in Aldon Accessories, Ltd. v. Spiegel, Inc., 738 F.2d 548 (2d Cir.1984).
VI. Joint Authorship
Defendants also move for summary judgment on the grounds that the photographs are joint works. Since one joint author may not sue another joint author for copyright infringement, if the works are joint works, plaintiff’s infringement claim must fail. See, e.g., Weissmann v. Freeman, 868 F.2d 1313, 1318 (2d Cir.1989) (“[A]n action for infringement between joint owners will not lie because an individual cannot infringe his own copyright. The only duty joint owners have with respect to their joint work is to account for profits from its use.”). Like work-for-hire, joint authorship is an affirmative defense. Plaintiff’s certificate of registration indicating SHL is the author is prima facie evidence of sole authorship. See 17 U.S.C. § 410(c)(1978). Defendants bear the burden of overcoming this statutory presumption. See, e.g., Langman Fabrics, 160 F.3d at 111.
- ↑ This assertion is the totality of defendants’ work-for-hire argument. The only case cited in support of their argument is a 1988 district court case which was effectively overruled by Reid.
