Third Circuit Court of Appeals rules freelance photographer is not “employee” and retains copyright ownership

Third Circuit Court of Appeals rules freelance photographer is not “employee” and retains copyright ownership – Ed Marco

Third Circuit Court of Appeals rules freelance photographer is not “employee” and retains copyright ownership: Photographers have won another major decision in an important “work for hire” copyright case in which the American Society of Magazine Photographers (ASMP) filed a “friend of the Court” brief on behalf of a photographer’s appeal and participated in oral argument of the appeal.

A three-judge panel of the Third Circuit Court of Appeals in Philadelphia unanimously ruled on July 23 that freelance photographer Ed Marco of Philadelphia was an independent contractor who retained ownership of the copyright of advertising photographs commissioned by a publisher for its magazine.

In an opinion written by Circuit Judge Carol Los Mansmann, the court reversed the lower court’s decision that Marco, an ASMP member, was Accent Publishing’s “employee” under the agency test laid down by the Supreme Court in another case, Community for Creative Non-Violence v Reid. ASMP was also substantially involved on the artist’s behalf in that case.

Instead, the appellate court held that Marco was an independent contractor and should not be considered an “employee” for determining whether the photographer’s work is “work made for hire” under the Federal copyright law. And the appellate court ordered the lower court to reconsider its previous denial of Marco’s request for a preliminary injunction to restrain Accent from reusing his photographs without permission.

The lower court’s decision holding that Marco was an “employee,” and therefore that the photographs he created were “works made for hire,” was the first time a Federal court had applied the Reid test to hold a freelancer to be an “employee.” In Reid, the Supreme Court applied principles of agency law to hold in 1989 that a freelance sculptor was not the “employee” of the charity that commissioned him, and that he retained ownership of the copyright in his work. Until the Marco case, every court applying the Reid agency law test to a freelance creator concluded that he or she was not an “employee” for work for hire purposes. The Federal District Court in the Marco case, however, found that the photographer should be considered an “employee,” in part because he was “not a skilled worker.” ASMP joined the photographer’s appeal, and in its brief took particular issue with the District Court’s ruling that the photographer’s occupation was not a skilled one.

The Third Circuit agreed with ASMP that Marco, who had been a professional for 10 years and who had a degree in photography, was at least as skilled as the sculptor in the Reid case, and that the District Court erred in concluding otherwise.

In addition, the Third Circuit agreed with ASMP that virtually every other factor relevant to determining the nature of the relationship between Marco and Accent Publishing indicated that he was an independent contractor. Among the important considerations relied upon by the court to demonstrate Marco’s independent contractor status were: his use of his own equipment and his own studio; the absence of any employee benefits provided by Accent; his payment of his own taxes; payment by the job rather than by means of a regular salary; his membership in a distinct occupation (the photography profession); his control over his work schedule; the relatively short duration of the relationship (6 months); and the absence of any right of Accent to assign him additional work.

The appellate court’s decision in the Marco v. Accent Publishing Co. case eliminates a lower court precedent that could have been used to deprive photographers and other freelance creators of their rights as “authors” under the Federal copyright laws by relying upon the fiction of “employment” status. As the court properly understood, photographers who are independent contractors for all other purposes, particularly in terms of paying for the costs of their own businesses, should not be considered “employees” in the eyes of the copyright laws and thereby be unfairly deprived of their principal business asset: their copyrights in their photographs.

COPYRIGHT 1992 Photographic Society of America, Inc.

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