(a) Initial Ownership.—Copyright in a work protected under this title vests initially in the author or authors of the work. The authors of a joint work are coowners of copyright in the work.

(b) Works Made for Hire.—In the case of a work made for hire, the employer or other person for whom the work was prepared is considered the author for purposes of this title, and, unless the parties have expressly agreed otherwise in a written instrument signed by them, owns all of the rights comprised in the copyright.

(c) Contributions to Collective Works.—Copyright in each separate contribution to a collective work is distinct from copyright in the collective work as a whole, and vests initially in the author of the contribution. In the absence of an express transfer of the copyright or of any rights under it, the owner of copyright in the collective work is presumed to have acquired only the privilege of reproducing and distributing the contribution as part of that particular collective work, any revision of that collective work, and any later collective work in the same series.

(d) Transfer of Ownership.—

(1) The ownership of a copyright may be transferred in whole or in part by any means of conveyance or by operation of law, and may be bequeathed by will or pass as personal property by the applicable laws of intestate succession.

(2) Any of the exclusive rights comprised in a copyright, including any subdivision of any of the rights specified by section 106, may be transferred as provided by clause (1) and owned separately. The owner of any particular exclusive right is entitled, to the extent of that right, to all of the protection and remedies accorded to the copyright owner by this title.

(e) Involuntary Transfer.—When an individual author's ownership of a copyright, or of any of the exclusive rights under a copyright, has not previously been transferred voluntarily by that individual author, no action by any governmental body or other official or organization purporting to seize, expropriate, transfer, or exercise rights of ownership with respect to the copyright, or any of the exclusive rights under a copyright, shall be given effect under this title, except as provided under title 11.

Notes

Historical and Revision Notes

house report no. 94–1476

Initial Ownership. Two basic and well-established principles of copyright law are restated in section 201(a): that the source of copyright ownership is the author of the work, and that, in the case of a "joint work," the coauthors of the work are likewise coowners of the copyright. Under the definition of section 101, a work is "joint" if the authors collaborated with each other, or if each of the authors prepared his or her contribution with the knowledge and intention that it would be merged with the contributions of other authors as "inseparable or interdependent parts of a unitary whole." The touchstone here is the intention, at the time the writing is done, that the parts be absorbed or combined into an integrated unit, although the parts themselves may be either "inseparable" (as the case of a novel or painting) or "interdependent" (as in the case of a motion picture, opera, or the words and music of a song). The definition of "joint work" is to be contrasted with the definition of "collective work," also in section 101, in which the elements of merger and unity are lacking; there the key elements are assemblage or gathering of "separate and independent works * * * into a collective whole."

The definition of "joint works" has prompted some concern lest it be construed as converting the authors of previously written works, such as plays, novels, and music, into coauthors of a motion picture in which their work is incorporated. It is true that a motion picture would normally be a joint rather than a collective work with respect to those authors who actually work on the film, although their usual status as employees for hire would keep the question of coownership from coming up. On the other hand, although a novelist, playwright, or songwriter may write a work with the hope or expectation that it will be used in a motion picture, this is clearly a case of separate or independent authorship rather than one where the basic intention behind the writing of the work was for motion picture use. In this case, the motion picture is a derivative work within the definition of that term, and section 103 makes plain that copyright in a derivative work is independent of, and does not enlarge the scope of rights in, any preexisting material incorporated in it. There is thus no need to spell this conclusion out in the definition of "joint work."

There is also no need for a specific statutory provision concerning the rights and duties of the coowners of a work; court-made law on this point is left undisturbed. Under the bill, as under the present law, coowners of a copyright would be treated generally as tenants in common, with each coowner having an independent right to use or license the use of a work, subject to a duty of accounting to the other coowners for any profits.

Works Made for Hire. Section 201(b) of the bill adopts one of the basic principles of the present law: that in the case of works made for hire the employer is considered the author of the work, and is regarded as the initial owner of copyright unless there has been an agreement otherwise. The subsection also requires that any agreement under which the employee is to own rights be in writing and signed by the parties.

The work-made-for-hire provisions of this bill represent a carefully balanced compromise, and as such they do not incorporate the amendments proposed by screenwriters and composers for motion pictures. Their proposal was for the recognition of something similar to the "shop right" doctrine of patent law: with some exceptions, the employer would acquire the right to use the employee's work to the extent needed for purposes of his regular business, but the employee would retain all other rights as long as he or she refrained from the authorizing of competing uses. However, while this change might theoretically improve the bargaining position of screenwriters and others as a group, the practical benefits that individual authors would receive are highly conjectural. The presumption that initial ownership rights vest in the employer for hire is well established in American copyright law, and to exchange that for the uncertainties of the shop right doctrine would not only be of dubious value to employers and employees alike, but might also reopen a number of other issues.

The status of works prepared on special order or commission was a major issue in the development of the definition of "works made for hire" in section 101, which has undergone extensive revision during the legislative process. The basic problem is how to draw a statutory line between those works written on special order or commission that should be considered as "works made for hire," and those that should not. The definition now provided by the bill represents a compromise which, in effect, spells out those specific categories of commissioned works that can be considered "works made for hire" under certain circumstances.

Of these, one of the most important categories is that of "instructional texts." This term is given its own definition in the bill: "a literary, pictorial, or graphic work prepared for publication with the purpose of use in systematic instructional activities." The concept is intended to include what might be loosely called "textbook material," whether or not in book form or prepared in the form of text matter. The basic characteristic of "instructional texts" is the purpose of their preparation for "use in systematic instructional activities," and they are to be distinguished from works prepared for use by a general readership.

Contributions to Collective Works. Subsection (c) of section 201 deals with the troublesome problem of ownership of copyright in contributions to collective works, and the relationship between copyright ownership in a contribution and in the collective work in which it appears. The first sentence establishes the basic principle that copyright in the individual contribution and copyright in the collective work as a whole are separate and distinct, and that the author of the contribution is, as in every other case, the first owner of copyright in it. Under the definitions in section 101, a "collective work" is a species of "compilation" and, by its nature, must involve the selection, assembly, and arrangement of "a number of contributions." Examples of "collective works" would ordinarily include periodical issues, anthologies, symposia, and collections of the discrete writings of the same authors, but not cases, such as a composition consisting of words and music, a work published with illustrations or front matter, or three one-act plays, where relatively few separate elements have been brought together. Unlike the contents of other types of "compilations," each of the contributions incorporated in a "collective work" must itself constitute a "separate and independent" work, therefore ruling out compilations of information or other uncopyrightable material and works published with editorial revisions or annotations. Moreover, as noted above, there is a basic distinction between a "joint work," where the separate elements merge into a unified whole, and a "collective work," where they remain unintegrated and disparate.

The bill does nothing to change the rights of the owner of copyright in a collective work under the present law. These exclusive rights extend to the elements of compilation and editing that went into the collective work as a whole, as well as the contributions that were written for hire by employees of the owner of the collective work, and those copyrighted contributions that have been transferred in writing to the owner by their authors. However, one of the most significant aims of the bill is to clarify and improve the present confused and frequently unfair legal situation with respect to rights in contributions.

The second sentence of section 201(c), in conjunction with the provisions of section 404 dealing with copyright notice, will preserve the author's copyright in a contribution even if the contribution does not bear a separate notice in the author's name, and without requiring any unqualified transfer of rights to the owner of the collective work. This is coupled with a presumption that, unless there has been an express transfer of more, the owner of the collective work acquires, "only the privilege of reproducing and distributing the contribution as part of that particular collective work, any revision of that collective work, and any later collective work in the same series."

The basic presumption of section 201(c) is fully consistent with present law and practice, and represents a fair balancing of equities. At the same time, the last clause of the subsection, under which the privilege of republishing the contribution under certain limited circumstances would be presumed, is an essential counterpart of the basic presumption. Under the language of this clause a publishing company could reprint a contribution from one issue in a later issue of its magazine, and could reprint an article from a 1980 edition of an encyclopedia in a 1990 revision of it; the publisher could not revise the contribution itself or include it in a new anthology or an entirely different magazine or other collective work.

Transfer of Ownership. The principle of unlimited alienability of copyright is stated in clause (1) of section 201(d). Under that provision the ownership of a copyright, or of any part of it, may be transferred by any means of conveyance or by operation of law, and is to be treated as personal property upon the death of the owner. The term "transfer of copyright ownership" is defined in section 101 to cover any "conveyance, alienation, or hypothecation," including assignments, mortgages, and exclusive licenses, but not including nonexclusive licenses. Representatives of motion picture producers have argued that foreclosures of copyright mortgages should not be left to varying State laws, and that the statute should establish a Federal foreclosure system. However, the benefits of such a system would be of very limited application, and would not justify the complicated statutory and procedural requirements that would have to be established.

Clause (2) of subsection (d) contains the first explicit statutory recognition of the principle of divisibility of copyright in our law. This provision, which has long been sought by authors and their representatives, and which has attracted wide support from other groups, means that any of the exclusive rights that go to make up a copyright, including those enumerated in section 106 and any subdivision of them, can be transferred and owned separately. The definition of "transfer of copyright ownership" in section 101 makes clear that the principle of divisibility applies whether or not the transfer is "limited in time or place of effect," and another definition in the same section provides that the term "copyright owner," with respect to any one exclusive right, refers to the owner of that particular right. The last sentence of section 201(d)(2) adds that the owner, with respect to the particular exclusive right he or she owns, is entitled "to all of the protection and remedies accorded to the copyright owner by this title." It is thus clear, for example, that a local broadcasting station holding an exclusive license to transmit a particular work within a particular geographic area and for a particular period of time, could sue, in its own name as copyright owner, someone who infringed that particular exclusive right.

Subsection (e) provides that when an individual author's ownership of a copyright, or of any of the exclusive rights under a copyright, have not previously been voluntarily transferred, no action by any governmental body or other official or organization purporting to seize, expropriate, transfer, or exercise rights of ownership with respect to the copyright, or any of the exclusive rights under a copyright, shall be given effect under this title.

The purpose of this subsection is to reaffirm the basic principle that the United States copyright of an individual author shall be secured to that author, and cannot be taken away by any involuntary transfer. It is the intent of the subsection that the author be entitled, despite any purported expropriation or involuntary transfer, to continue exercising all rights under the United States statute, and that the governmental body or organization may not enforce or exercise any rights under this title in that situation.

It may sometimes be difficult to ascertain whether a transfer of copyright is voluntary or is coerced by covert pressure. But subsection (e) would protect foreign authors against laws and decrees purporting to divest them of their rights under the United States copyright statute, and would protect authors within the foreign country who choose to resist such covert pressures.

Traditional legal actions that may involve transfer of ownership, such as bankruptcy proceedings and mortgage foreclosures, are not within the scope of this subsection; the authors in such cases have voluntarily consented to these legal processes by their overt actions—for example, by filing in bankruptcy or by hypothecating a copyright.

Amendments

1978—Subsec. (e). Pub. L. 95–598 inserted ", except as provided under title 11".

Effective Date of 1978 Amendment

Amendment effective Oct. 1, 1979, see section 402(a) of Pub. L. 95–598 set out as an Effective Date note preceding section 101 of Title 11, Bankruptcy.

[1228] [1229] Philip H. Stillman and Stephen S. Lux, Flynn, Sheridan, Tabb & Stillman, Del Mar, California, for the plaintiff-appellant.

Bruce Isaacs, Karen Brodkin & Jason A. Forge, Wyman, Isaacs, Blumenthal, & Lynne, Los Angeles, California, for the defendants-appellees.

Bruce P. Vann, Kelly, Lytton, Mintz & Vann, Los Angeles, California, for the defendants-appellees.

Before: CANBY, NOONAN, and KLEINFELD, Circuit Judges.

KLEINFELD, Circuit Judge:

This is a copyright case involving a claim of coauthorship of the movie Malcolm X. We reject the "joint work" claim but remand for further proceedings on a quantum meruit claim.

I. FACTS

In 1991, Warner Brothers contracted with Spike Lee and his production companies to make the movie Malcolm X, to be based on the book, The Autobiography of Malcolm X. Lee co-wrote the screenplay, directed, and co-produced the movie, which starred Denzel Washington as Malcolm X. Washington asked Jefri Aalmuhammed to assist him in his preparation for the starring role because Aalmuhammed knew a great deal about Malcolm X and Islam. Aalmuhammed, a devout Muslim, was particularly knowledgeable about the life of Malcolm X, having previously written, directed, and produced a documentary film about Malcolm X.

Aalmuhammed joined Washington on the movie set. The movie was filmed in the New York metropolitan area and Egypt. Aalmuhammed presented evidence that his involvement in making the movie was very extensive. He reviewed the shooting script for Spike Lee and Denzel [1230] Washington and suggested extensive script revisions. Some of his script revisions were included in the released version of the film; others were filmed but not included in the released version. Most of the revisions Aalmuhammed made were to ensure the religious and historical accuracy and authenticity of scenes depicting Malcolm X's religious conversion and pilgrimage to Mecca.

Aalmuhammed submitted evidence that he directed Denzel Washington and other actors while on the set, created at least two entire scenes with new characters, translated Arabic into English for subtitles, supplied his own voice for voice-overs, selected the proper prayers and religious practices for the characters, and edited parts of the movie during post production. Washington testified in his deposition that Aalmuhammed's contribution to the movie was "great" because he "helped to rewrite, to make more authentic." Once production ended, Aalmuhammed met with numerous Islamic organizations to persuade them that the movie was an accurate depiction of Malcolm X's life.

Aalmuhammed never had a written contract with Warner Brothers, Lee, or Lee's production companies, but he expected Lee to compensate him for his work. He did not intend to work and bear his expenses in New York and Egypt gratuitously. Aalmuhammed ultimately received a check for $25,000 from Lee, which he cashed, and a check for $100,000 from Washington, which he did not cash.

During the summer before Malcolm X's November 1992 release, Aalmuhammed asked for a writing credit as a co-writer of the film, but was turned down. When the film was released, it credited Aalmuhammed only as an "Islamic Technical Consultant," far down the list. In November 1995, Aalmuhammed applied for a copyright with the U.S. Copyright Office, claiming he was a co-creator, co-writer, and co-director of the movie. The Copyright Office issued him a "Certificate of Registration," but advised him in a letter that his "claims conflict with previous registrations" of the film.

On November 17, 1995, Aalmuhammed filed a complaint against Spike Lee, his production companies, and Warner Brothers, (collectively "Lee"), as well as Largo International, N.V., and Largo Entertainment, Inc. (collectively "Largo"), and Victor Company of Japan and JVC Entertainment, Inc. (collectively "Victor"). The suit sought declaratory relief and an accounting under the Copyright Act. In addition, the complaint alleged breach of implied contract, quantum meruit, and unjust enrichment, and federal (Lanham Act) and state unfair competition claims. The district court dismissed some of the claims under Rule 12(b)(6) and the rest on summary judgment.

II. ANALYSIS

A. Copyright claim

Aalmuhammed claimed that the movie Malcolm X was a "joint work" of which he was an author, thus making him a co-owner of the copyright.^[2] He sought a declaratory judgment to that effect, and an accounting for profits. He is not claiming copyright merely in what he wrote or contributed, but rather in the whole work, as a co-author of a "joint work."^[3] The district court granted defendants summary judgment against Mr. Aalmuhammed's copyright claims. We review de novo.^[4]

Defendants argue that Aalmuhammed's claim that he is one of the authors of a joint work is barred by the applicable statute of limitations. A claim of authorship of a joint work must be brought within three years of when it accrues.^[5] Because creation rather than infringement [1231] is the gravamen of an authorship claim, the claim accrues on account of creation, not subsequent infringement, and is barred three years from "plain and express repudiation" of authorship.^[6]

The movie credits plainly and expressly repudiated authorship, by listing Aalmuhammed far below the more prominent names, as an "Islamic technical consultant." That repudiation, though, was less than three years before the lawsuit was filed. The record leaves open a genuine issue of fact as to whether authorship was repudiated before that. Aalmuhammed testified in his deposition that he discussed with an executive producer at Warner Brothers his claim to credit as one of the screenwriters more than three years before he filed suit. Defendants argue that this discussion was an express repudiation that bars the claim. It was not. Aalmuhammed testified that the producer told him "there is nothing I can do for you," but "[h]e said we would discuss it further at some point." A trier of fact could construe that communication as leaving the question of authorship open for further discussion. That leaves a genuine issue of fact as to whether the claim is barred by limitations, so we must determine whether there is a genuine issue of fact as to whether Aalmuhammed was an author of a "joint work."

Aalmuhammed argues that he established a genuine issue of fact as to whether he was an author of a "joint work," Malcolm X. The Copyright Act does not define "author," but it does define "joint work":

A "joint work" is a work prepared by two or more authors with the intention that their contributions be merged into inseparable or interdependent parts of a unitary whole.^[7]

"When interpreting a statute, we look first to the language."^[8] The statutory language establishes that for a work to be a "joint work" there must be (1) a copyrightable work, (2) two or more "authors," and (3) the authors must intend their contributions be merged into inseparable or interdependent parts of a unitary whole. A "joint work" in this circuit "requires each author to make an independently copyrightable contribution" to the disputed work.^[9]Malcolm X is a copyrightable work, and it is undisputed that the movie was intended by everyone involved with it to be a unitary whole. It is also undisputed that Aalmuhammed made substantial and valuable contributions to the movie, including technical help, such as speaking Arabic to the persons in charge of the mosque in Egypt, scholarly and creative help, such as teaching the actors how to pray properly as Muslims, and script changes to add verisimilitude to the religious aspects of the movie. Speaking Arabic to persons in charge of the mosque, however, does not result in a copyrightable contribution to the motion picture. Coaching of actors, to be copyrightable, must be turned into an expression in a form subject to copyright.^[10] The same may be said for many of Aalmuhammed's other activities. Aalmuhammed has, however, submitted evidence that he rewrote several specific passages of dialogue that appeared in Malcolm X, and that he wrote scenes relating to Malcolm X's Hajj pilgrimage that were enacted in the movie. If Aalmuhammed's evidence is accepted, as it must be on summary judgment, these items would have been independently copyrightable. [1232] Aalmuhammed, therefore, has presented a genuine issue of fact as to whether he made a copyrightable contribution. All persons involved intended that Aalmuhammed's contributions would be merged into interdependent parts of the movie as a unitary whole. Aalmuhammed maintains that he has shown a genuine issue of fact for each element of a "joint work."

But there is another element to a "joint work." A "joint work" includes "two or more authors."^[11] Aalmuhammed established that he contributed substantially to the film, but not that he was one of its "authors." We hold that authorship is required under the statutory definition of a joint work, and that authorship is not the same thing as making a valuable and copyrightable contribution. We recognize that a contributor of an expression may be deemed to be the "author" of that expression for purposes of determining whether it is independently copyrightable. The issue we deal with is a different and larger one: is the contributor an author of the joint work within the meaning of 17 U.S.C. § 101.

By statutory definition, a "joint work" requires "two or more authors."^[12] The word "author" is taken from the traditional activity of one person sitting at a desk with a pen and writing something for publication. It is relatively easy to apply the word "author" to a novel. It is also easy to apply the word to two people who work together in a fairly traditional pen-and-ink way, like, perhaps, Gilbert and Sullivan. In the song, "I Am the Very Model of a Modern Major General," Gilbert's words and Sullivan's tune are inseparable, and anyone who has heard the song knows that it owes its existence to both men, Sir William Gilbert and Sir Arthur Sullivan, as its creative originator. But as the number of contributors grows and the work itself becomes less the product of one or two individuals who create it without much help, the word is harder to apply.

Who, in the absence of contract, can be considered an author of a movie? The word is traditionally used to mean the originator or the person who causes something to come into being, or even the first cause, as when Chaucer refers to the "Author of Nature." For a movie, that might be the producer who raises the money. Eisenstein thought the author of a movie was the editor. The "auteur" theory suggests that it might be the director, at least if the director is able to impose his artistic judgments on the film. Traditionally, by analogy to books, the author was regarded as the person who writes the screenplay, but often a movie reflects the work of many screenwriters. Grenier suggests that the person with creative control tends to be the person in whose name the money is raised, perhaps a star, perhaps the director, perhaps the producer, with control gravitating to the star as the financial investment in scenes already shot grows.^[13] Where the visual aspect of the movie is especially important, the chief cinematographer might be regarded as the author. And for, say, a Disney animated movie like "The Jungle Book," it might perhaps be the animators and the composers of the music.

The Supreme Court dealt with the problem of defining "author" in new media in Burrow-Giles Lithographic Co. v. Sarony.^[14] The question there was, who is the author of a photograph: the person who sets it up and snaps the shutter, or the person who makes the lithograph from it. Oscar Wilde, the person whose picture was at issue, doubtless offered some creative advice as well. The Court decided that the photographer was the author, quoting various English authorities: "the person who has superintended the arrangement, who has actually formed the picture by [1233] putting the persons in position, and arranging the place where the people are to be—the man who is the effective cause of that"; "`author' involves originating, making, producing, as the inventive or master mind, the thing which is to be protected"; "the man who really represents, creates, or gives effect to the idea, fancy, or imagination."<sup>[15]</sup> The Court said that an "author," in the sense that the Founding Fathers used the term in the Constitution,<sup>[16]</sup> was "`he to whom anything owes its origin; originator; maker; one who completes a work of science or literature.'"^[17]

Answering a different question, what is a copyrightable "work," as opposed to who is the "author," the Supreme Court held in Feist Publications that "some minimal level of creativity" or "originality" suffices.^[18] But that measure of a "work" would be too broad and indeterminate to be useful if applied to determine who are "authors" of a movie. So many people might qualify as an "author" if the question were limited to whether they made a substantial creative contribution that that test would not distinguish one from another. Everyone from the producer and director to casting director, costumer, hairstylist, and "best boy" gets listed in the movie credits because all of their creative contributions really do matter. It is striking in Malcolm X how much the person who controlled the hue of the lighting contributed, yet no one would use the word "author" to denote that individual's relationship to the movie. A creative contribution does not suffice to establish authorship of the movie.

Burrow-Giles, in defining "author," requires more than a minimal creative or original contribution to the work.^[19]Burrow-Giles is still good law, and was recently reaffirmed in Feist Publications.^[20]Burrow-Giles and Feist Publications answer two distinct questions; who is an author, and what is a copyrightable work.^[21]Burrow-Giles defines author as the person to whom the work owes its origin and who superintended the whole work, the "master mind."^[22] In a movie this definition, in the absence of a contract to the contrary, would generally limit authorship to someone at the top of the screen credits, sometimes the producer, sometimes the director, possibly the star, or the screenwriter—someone who has artistic control. After all, in Burrow-Giles the lithographer made a substantial copyrightable creative contribution, and so did the person who posed, Oscar Wilde, but the Court held that the photographer was the author.^[23]

The Second and Seventh Circuits have likewise concluded that contribution of independently copyrightable material to a work intended to be an inseparable whole will not suffice to establish authorship of a joint work.^[24] Although the Second and Seventh Circuits do not base their decisions on the word "authors" in the statute, [1234] the practical results they reach are consistent with ours. These circuits have held that a person claiming to be an author of a joint work must prove that both parties intended each other to be joint authors.^[25] In determining whether the parties have the intent to be joint authors, the Second Circuit looks at who has decision making authority, how the parties bill themselves, and other evidence.^[26]

In Thomson v. Larson, an off-Broadway playwright had created a modern version of La Boheme, and had been adamant throughout its creation on being the sole author.^[27] He hired a drama professor for "dramaturgical assistance and research," agreeing to credit her as "dramaturg" but not author, but saying nothing about "joint work" or copyright.^[28] The playwright tragically died immediately after the final dress rehearsal, just before his play became the tremendous Broadway hit, Rent.^[29] The dramaturg then sued his estate for a declaratory judgment that she was an author of Rent as a "joint work," and for an accounting.^[30] The Second Circuit noted that the dramaturg had no decision making authority, had neither sought nor was billed as a co-author, and that the defendant entered into contracts as the sole author.^[31] On this reasoning, the Second Circuit held that there was no intent to be joint authors by the putative parties and therefore it was not a joint work.^[32]

Considering Burrow-Giles, the recent cases on joint works^[33] (especially the thoughtful opinion in Thomson v. Larson^[34] ), and the Gilbert and Sullivan example, several factors suggest themselves as among the criteria for joint authorship, in the absence of contract. First, an author "superintend[s]"^[35] the work by exercising control.^[36] This will likely be a person "who has actually formed the picture by putting the persons in position, and arranging the place where the people are to be-the man who is the effective cause of that,"^[37] or "the inventive or master mind" who "creates, or gives effect to the idea."^[38] Second, putative coauthors make objective manifestations of a shared intent to be coauthors, as by denoting the authorship of The Pirates of Penzance as "Gilbert and Sullivan."^[39] We say objective manifestations because, were the mutual intent to be determined by subjective intent, it could become an instrument of fraud, were one coauthor to hide from the other an intention to take sole credit for the work. Third, the audience appeal of the work turns on both contributions and "the share of each in its success cannot be appraised."^[40] Control in many cases will be the most important factor. [1235] The best objective manifestation of a shared intent, of course, is a contract saying that the parties intend to be or not to be co-authors. In the absence of a contract, the inquiry must of necessity focus on the facts. The factors articulated in this decision and the Second and Seventh Circuit decisions cannot be reduced to a rigid formula, because the creative relationships to which they apply vary too much. Different people do creative work together in different ways, and even among the same people working together the relationship may change over time as the work proceeds.

Aalmuhammed did not at any time have superintendence of the work.^[41] Warner Brothers and Spike Lee controlled it. Aalmuhammed was not the person "who has actually formed the picture by putting the persons in position, and arranging the place ...."^[42] Spike Lee was, so far as we can tell from the record. Aalmuhammed, like Larson's dramaturg, could make extremely helpful recommendations, but Spike Lee was not bound to accept any of them, and the work would not benefit in the slightest unless Spike Lee chose to accept them. Aalmuhammed lacked control over the work, and absence of control is strong evidence of the absence of co-authorship.

Also, neither Aalmuhammed, nor Spike Lee, nor Warner Brothers, made any objective manifestations of an intent to be coauthors. Warner Brothers required Spike Lee to sign a "work for hire" agreement, so that even Lee would not be a co-author and co-owner with Warner Brothers. It would be illogical to conclude that Warner Brothers, while not wanting to permit Lee to own the copyright, intended to share ownership with individuals like Aalmuhammed who worked under Lee's control, especially ones who at the time had made known no claim to the role of co-author. No one, including Aalmuhammed, made any indication to anyone prior to litigation that Aalmuhammed was intended to be a co-author and co-owner.

Aalmuhammed offered no evidence that he was the "inventive or master mind" of the movie. He was the author of another less widely known documentary about Malcolm X, but was not the master of this one. What Aalmuhammed's evidence showed, and all it showed, was that, subject to Spike Lee's authority to accept them, he made very valuable contributions to the movie. That is not enough for co-authorship of a joint work.

The Constitution establishes the social policy that our construction of the statutory term "authors" carries out. The Founding Fathers gave Congress the power to give authors copyrights in order "[t]o promote the progress of Science and useful arts."^[43] Progress would be retarded rather than promoted, if an author could not consult with others and adopt their useful suggestions without sacrificing sole ownership of the work. Too open a definition of author would compel authors to insulate themselves and maintain ignorance of the contributions others might make. Spike Lee could not consult a scholarly Muslim to make a movie about a religious conversion to Islam, and the arts would be the poorer for that.

The broader construction that Aalmuhammed proposes would extend joint authorship to many "overreaching contributors,"^[44] like the dramaturg in Thomson, and deny sole authors "exclusive authorship status simply because another person render[ed] some form of assistance."^[45] Claimjumping by research assistants, editors, and former spouses, lovers and friends would endanger authors who talked with people about what they were [1236] doing, if creative copyrightable contribution were all that authorship required.

Aalmuhammed also argues that issuance of a copyright registration certificate to him establishes a prima facie case for ownership. A prima facie case could not in any event prevent summary judgment in the presence of all the evidence rebutting his claim of ownership. "The presumptive validity of the certificate may be rebutted and defeated on summary judgment."^[46] The Copyright Office stated in its response to Aalmuhammed's application for copyright (during the pendency of this litigation) that his claims "conflict with previous registration claims," and therefore the Copyright Office had "several questions" for him. One of the questions dealt with the "intent" of "other authors," i.e., Warner Brothers. The evidence discussed above establishes without genuine issue that the answers to these questions were that Warner Brothers did not intend to share ownership with Aalmuhammed.

Because the record before the district court established no genuine issue of fact as to Aalmuhammed's co-authorship of Malcolm X as a joint work, the district court correctly granted summary judgment dismissing his claims for declaratory judgment and an accounting resting on co-authorship.

B. Quantum meruit

Aalmuhammed alleged in his complaint that defendants accepted his services, knowing that they were not being provided gratuitously, yet paid him neither the fair value of his services nor even his full expenses. He wrote script material, particularly for the important Islamic religious scenes, arranged with the Egyptians in charge of the mosque for the movie to be shot inside (Aalmuhammed is a Muslim and was the only Arabic-speaking person in the production crew), taught the actors how to pray as Muslims and directed the prayer scenes, and talked to Islamic authorities after the movie was made to assure their support when it was exhibited. These services were very important. The movie would be a dark tale of hate, but for the redemptive, uplifting Islamic religious scenes.

All the services were performed in New York and in Egypt (where the Hajj scenes were shot). Aalmuhammed's fifth, sixth and seventh claims articulated this claim variously as quasicontract, quantum meruit, and unjust enrichment. These claims are different from Aalmuhammed's claim to authorship of a joint work. Even though he was not an author, it is undisputed that he made a substantial contribution to the film. It may be that the producer or director, seeing that Aalmuhammed was performing valuable and substantial services and expending substantial amounts for travel and lodging, in the apparent expectation of reimbursement, had a duty to sign him up as an employee or independent contractor, obtain his acknowledgment that he was working gratuitously or perhaps for Denzel Washington, or eject him from the set.^[47] We need not decide that, because the question on review is limited to which state's statute of limitations applies.

The defendants moved to dismiss these claims for failure to state a claim under Rule 12(b)(6), on the ground that the claims were barred by California's two year statute of limitations. Aalmuhammed argued that New York's six year statute of limitations applied. The district court granted the motion to dismiss, applying California's shorter statute.

The parties agree that the district court correctly used law of the forum, California, [1237] as the source of its rule for choice of law. The applicable rule required, in this case, that "the court must apply the law of the state whose interest would be more impaired if its law were not applied."^[48]

Defendants argue that only California had an interest in the application of its statute of limitations, not New York. Their theory is that the defendant corporations have their principal places of business in California, Aalmuhammed resided in neither state (he lives in Florida, though he spent the months of shooting time in New York and Egypt), and Aalmuhammed filed his lawsuit in California.

The defense argument is unpersuasive. The question is which state's interest would suffer more by the application of the other's law.^[49] The strength of the interest is also a factor, however.^[50] California's interest in protecting its residents from stale claims arising from work done outside the state is a weak one: "[t]he residence of the parties is not the determining factor in a choice of law analysis."^[51] New York's interest in governing the remedies available to parties working in new York is far more significant.^[52] New York's connection with Aalmuhammed's claim is considerably more substantial, immediate and concrete than California's. We conclude that New York would suffer more damage to its interest if California law were applied than would California if New York law were applied.

Because New York has the stronger interest and would suffer more damage than California if its law were not applied, New York's six year statute of limitations governs. The claims were brought within six years of when they accrued. We therefore vacate the dismissal of Aalmuhammed's implied contract, quantum meruit, and unjust enrichment claims and remand them for further proceedings.

C. Unfair competition

Aalmuhammed claimed that defendants passed off his scriptwriting, directing and other work as that of other persons, in violation of the Lanham Act^[53] and the California statute prohibiting unfair competition.^[54] The dismissal was under Rule 12(b)(6), for failure to state a claim upon which relief can be granted, so we review de novo,^[55] on the basis of allegations in the complaint.^[56]

We have held that, at least in some circumstances, failure to give appropriate credit for a film is "reverse palming off" actionable under the Lanham Act.^[57] And we have held that "actions pursuant to California Business and Professions Code § 17200 are substantially congruent to claims made under the Lanham Act."^[58] Defendants argue that not enough of Aalmuhammed's proposed script was used verbatim to amount to a violation. But this argument goes to the evidence, not the complaint, so it cannot sustain the 12(b)(6) dismissal. The complaint alleged that Aalmuhammed "substantially rewrote and expanded the dialogue for various entire [1238] scenes" and otherwise alleged extensive and substantial use of his work in the final movie. We need not determine whether Aalmuhammed established a genuine issue of fact regarding unfair competition, because the claim never got as far as summary judgment in the district court. We reverse the dismissal of these two claims.

D. Conduct abroad

The district court dismissed Aalmuhammed's claims against the Largo defendants under Rule 12(b)(6) for failure to state a claim. The dismissal was based on our decision in Subafilms, that acts of copyright infringement that occur wholly outside of the United States are not actionable under the U.S. Copyright Act.^[59]

The complaint does not say whether the Largo defendants' conduct occurred outside the United States. Defendants argue that it does, by referring to them as "the film's foreign distributors." But it also says that their principal place of business is in California. These allegations leave room for proof that the conduct that the Largo defendants engaged in took place within California, even though it had consequences abroad. We cannot tell from the complaint whether foreign distributors do their work in foreign countries, or do it by fax, phone, and email from California. We therefore reverse the dismissal based on extraterritoriality of the claims against the Largo defendants.

AFFIRMED in part, REVERSED and REMANDED in part. Each party to bear its own costs.

[1] The panel unanimously finds this case suitable for decision without oral argument. See Fed. R.App. P. 34(a)(2). This dispute was originally submitted and argued on May 5, 1998 as 97-55403. However, on October 29, 1998, that appeal was dismissed for want of jurisdiction. The District Court had entered a judgment that stated "The Court may amend or amplify this order with a more specific statement of the grounds for its decision." National Distrib. Agency v. Nationwide Mutual Ins. Co., 117 F.3d 432 (9th Cir.1997), held that the identical language prevented review because "the court left open the possibility that the court might change its ruling," so no final judgment was entered. On December 10, 1998, the District Court amended its order by removing that one sentence, thus making its order final. The parties then appealed the District Court's decision again. On April 19, 1999, this court granted appellant's motion to submit the case without oral argument, to take judicial notice of the briefs and excerpts filed in 97-55403, and to allow filing of letter briefs supplementing the earlier briefs.

[2] 17 U.S.C. §§ 101, 201(a).

[3] Cf. Thomson v. Larson, 147 F.3d 195, 206 (2nd Cir.1998).

[4] See Covey v. Hollydale Mobilehome Estates, 116 F.3d 830, 834 (9th Cir.1997), amended by, 125 F.3d 1281 (1997).

[5] See 17 U.S.C. § 507(b); Zuill v. Shanahan, 80 F.3d 1366, 1371 (9th Cir.1996), cert. denied, 519 U.S. 1090, 117 S.Ct. 763, 136 L.Ed.2d 710 (1997).

[6] Zuill, 80 F.3d at 1371.

[7] 17 U.S.C. § 101.

[8] Richardson v. United States, 526 U.S. 813, 119 S.Ct. 1707, 1710, 143 L.Ed.2d 985 (1999).

[9] Ashton-Tate Corp. v. Ross, 916 F.2d 516, 521 (9th Cir.1990).

[10] See Ashton-Tate Corp. v. Ross, 916 F.2d 516, 521 (9th Cir.1990).

[11] 17 U.S.C. § 101.

[12] 17 U.S.C. § 101.

[13] See Richard Grenier, Capturing the Culture, 206-07 (1991).

[14] Burrow-Giles Lithographic Co. v. Sarony, 111 U.S. 53, 61, 4 S.Ct. 279, 28 L.Ed. 349 (1884).

[15] Id. at 61, 4 S.Ct. 279 (quoting Nottage v. Jackson, 11 Q.B.D. 627 (1883)).

[16] U.S. Const. Art. 1, § 8, cl. 8.

[17] Burrow-Giles, 111 U.S. at 58, 4 S.Ct. 279 (quoting Worcester).

[18] Feist Publications, Inc. v. Rural Telephone Service Co., Inc., 499 U.S. 340, 345, 111 S.Ct. 1282, 113 L.Ed.2d 358 (1991).

[19] Burrow-Giles Lithographic Co. v. Sarony, 111 U.S. 53, 58, 4 S.Ct. 279, 28 L.Ed. 349 (1883).

[20] Feist Publications, Inc. v. Rural Telephone Service Co., Inc., 499 U.S. 340, 346, 111 S.Ct. 1282, 113 L.Ed.2d 358 (1991).

[21] See Burrow-Giles Lithographic Co. v. Sarony, 111 U.S. 53, 4 S.Ct. 279, 28 L.Ed. 349 (1884); Feist Publications, Inc. v. Rural Telephone Service Co., Inc., 499 U.S. 340, 111 S.Ct. 1282, 113 L.Ed.2d 358 (1991).

[22] Burrow-Giles, 111 U.S. at 61, 4 S.Ct. 279 (quoting Nottage v. Jackson, 11 Q.B.D. 627 (1883)).

[23] Id. at 61, 4 S.Ct. 279.

[24] Thomson v. Larson, 147 F.3d 195, (2nd Cir. 1998); Erickson v. Trinity Theatre, Inc., 13 F.3d 1061 (7th Cir.1994); Childress v. Taylor, 945 F.2d 500 (2d Cir.1991).

[25] Thomson, 147 F.3d at 202-05.

[26] Id.

[27] Id. at 197.

[28] Id.

[29] Id. at 198.

[30] Id.

[31] Id. at 202-04.

[32] Id. at 202-24.

[33] See Thomson v. Larson, 147 F.3d 195, (2nd Cir.1998); Erickson v. Trinity Theatre, Inc., 13 F.3d 1061 (7th Cir.1994); Childress v. Taylor, 945 F.2d 500 (2nd Cir.1991).

[34] Thomson v. Larson, 147 F.3d 195 (2nd Cir.1998).

[35] Burrow-Giles v. Sarony, 111 U.S. at 61, 4 S.Ct. 279 (quoting Nottage v. Jackson, 11 Q.B. div. 627 (1883)).

[36] Thomson, 147 F.3d at 202.

[37] Burrow-Giles v. Sarony, 111 U.S. at 61, 4 S.Ct. 279 (quoting Nottage v. Jackson, 11 Q.B. Div. 627 (1883)).

[38] Id.

[39] Cf. Thomson v. Larson, 147 F.3d 195, 202 (2nd Cir.1998).

[40] Edward B. Marks Music Corp. v. Jerry Vogel Music Co., Inc., 140 F.2d 266, 267 (2nd Cir. 1944) (Hand, J.) modified by, 140 F.2d 268 (1944).

[41] See Burrow-Giles v. Sarony, 111 U.S. 53, 61, 4 S.Ct. 279, 28 L.Ed. 349 (1883).

[42] Id.

[43] U.S. Const. Art. 1, § 8, cl. 8.

[44] Thomson, 147 F.3d at 200 (internal quotations omitted).

[45] Id. at 202 (citing Childress v. Taylor, 945 F.2d 500, 504 (1991)).

[46] S.O.S., Inc. v. Payday, Inc., 886 F.2d 1081, 1086 (9th Cir.1989).

[47] See 2 George E. Palmer, Law of Restitution § 10.11, at 463 (1978) ("When the plaintiff voluntarily submits an idea to the defendant which the defendant uses to his economic advantage, without any express agreement to pay the plaintiff for such use, ... the plaintiff will be able [in some circumstances] to recover the reasonable value of the use of the idea in a contract action.").

[48] Waggoner v. Snow, Becker, Kroll, Klaris & Krauss, 991 F.2d 1501, 1507 (9th Cir.1993) (citing Ledesma v. Jack Stewart Produce, Inc., 816 F.2d 482, 484 (9th Cir.1987)).

[49] Waggoner v. Snow, Becker, Kroll, Klaris & Krauss, 991 F.2d 1501, 1507 (9th Cir.1993) (citing Ledesma v. Jack Stewart Produce, Inc., 816 F.2d 482, 484 (9th Cir.1987)).

[50] Id.

[51] Id.

[52] See Rosenthal v. Fonda, 862 F.2d 1398, 1403 (9th Cir.1988).

[53] 15 U.S.C. §§ 1117, 1125.

[54] Cal. Bus. & Prof.Code § 17203.

[55] See Cohen v. Stratosphere Corp., 115 F.3d 695, 700 (9th Cir.1997).

[56] See Campanelli v. Bockrath, 100 F.3d 1476, 1479 (9th Cir.1996).

[57] Smith v. Montoro, 648 F.2d 602, 607 (9th Cir.1981); See also Lamothe v. Atlantic Recording Corp., 847 F.2d 1403, 1406-07 (9th Cir.1988).

[58] Cleary v. News Corp., 30 F.3d 1255, 1262-63 (9th Cir.1994).

[59] See Subafilms, Ltd. v. MGM-Pathe Communications, 24 F.3d 1088, 1095-96 (9th Cir. 1994) (en banc).

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT

[732] Robert Alan Garrett argued the cause for petitioners. With him on the briefs were Terri A. Southwick and L. Barrett Boss.

Joshua Kaufman argued the cause for respondent. With him on the brief was Jeffrey B. O'Toole.

Lawrence S. Robbins argued the cause for the Register of Copyrights as amicus curiae urging affirmance. With him on the brief were Acting Solicitor General Bryson, Deputy Solicitor General Merrill, and Ralph Oman.^[*]

JUSTICE MARSHALL delivered the opinion of the Court.

In this case, an artist and the organization that hired him to produce a sculpture contest the ownership of the copyright in that work. To resolve this dispute, we must construe the "work made for hire" provisions of the Copyright Act of 1976 (Act or 1976 Act), 17 U. S. C. §§ 101 and 201(b), and in particular, the provision in § 101, which defines as a "work made for hire" a "work prepared by an employee within the scope of his or her employment" (hereinafter § 101(1)).

[733] I

Petitioners are the Community for Creative Non-Violence (CCNV), a nonprofit unincorporated association dedicated to eliminating homelessness in America, and Mitch Snyder, a member and trustee of CCNV. In the fall of 1985, CCNV decided to participate in the annual Christmastime Pageant of Peace in Washington, D. C., by sponsoring a display to dramatize the plight of the homeless. As the District Court recounted:

"Snyder and fellow CCNV members conceived the idea for the nature of the display: a sculpture of a modern Nativity scene in which, in lieu of the traditional Holy Family, the two adult figures and the infant would appear as contemporary homeless people huddled on a streetside steam grate. The family was to be black (most of the homeless in Washington being black); the figures were to be life-sized, and the steam grate would be positioned atop a platform 'pedestal,' or base, within which special-effects equipment would be enclosed to emit simulated 'steam' through the grid to swirl about the figures. They also settled upon a title for the work — 'Third World America' — and a legend for the pedestal: 'and still there is no room at the inn.'" 652 F. Supp. 1453, 1454 (DC 1987).

Snyder made inquiries to locate an artist to produce the sculpture. He was referred to respondent James Earl Reid, a Baltimore, Maryland, sculptor. In the course of two telephone calls, Reid agreed to sculpt the three human figures. CCNV agreed to make the steam grate and pedestal for the statue. Reid proposed that the work be cast in bronze, at a total cost of approximately $100,000 and taking six to eight months to complete. Snyder rejected that proposal because CCNV did not have sufficient funds, and because the statue had to be completed by December 12 to be included in the pageant. Reid then suggested, and Snyder agreed, that the [734] sculpture would be made of a material known as "Design Cast 62," a synthetic substance that could meet CCNV's monetary and time constraints, could be tinted to resemble bronze, and could withstand the elements. The parties agreed that the project would cost no more than $15,000, not including Reid's services, which he offered to donate. The parties did not sign a written agreement. Neither party mentioned copyright.

After Reid received an advance of $3,000, he made several sketches of figures in various poses. At Snyder's request, Reid sent CCNV a sketch of a proposed sculpture showing the family in a crechelike setting: the mother seated, cradling a baby in her lap; the father standing behind her, bending over her shoulder to touch the baby's foot. Reid testified that Snyder asked for the sketch to use in raising funds for the sculpture. Snyder testified that it was also for his approval. Reid sought a black family to serve as a model for the sculpture. Upon Snyder's suggestion, Reid visited a family living at CCNV's Washington shelter but decided that only their newly born child was a suitable model. While Reid was in Washington, Snyder took him to see homeless people living on the streets. Snyder pointed out that they tended to recline on steam grates, rather than sit or stand, in order to warm their bodies. From that time on, Reid's sketches contained only reclining figures.

Throughout November and the first two weeks of December 1985, Reid worked exclusively on the statue, assisted at various times by a dozen different people who were paid with funds provided in installments by CCNV. On a number of occasions, CCNV members visited Reid to check on his progress and to coordinate CCNV's construction of the base. CCNV rejected Reid's proposal to use suitcases or shopping bags to hold the family's personal belongings, insisting instead on a shopping cart. Reid and CCNV members did not discuss copyright ownership on any of these visits.

[735] On December 24, 1985, 12 days after the agreed-upon date, Reid delivered the completed statue to Washington. There it was joined to the steam grate and pedestal prepared by CCNV and placed on display near the site of the pageant. Snyder paid Reid the final installment of the $15,000. The statue remained on display for a month. In late January 1986, CCNV members returned it to Reid's studio in Baltimore for minor repairs. Several weeks later, Snyder began making plans to take the statue on a tour of several cities to raise money for the homeless. Reid objected, contending that the Design Cast 62 material was not strong enough to withstand the ambitious itinerary. He urged CCNV to cast the statue in bronze at a cost of $35,000, or to create a master mold at a cost of $5,000. Snyder declined to spend more of CCNV's money on the project.

In March 1986, Snyder asked Reid to return the sculpture. Reid refused. He then filed a certificate of copyright registration for "Third World America" in his name and announced plans to take the sculpture on a more modest tour than the one CCNV had proposed. Snyder, acting in his capacity as CCNV's trustee, immediately filed a competing certificate of copyright registration.

Snyder and CCNV then commenced this action against Reid and his photographer, Ronald Purtee,^[1] seeking return of the sculpture and a determination of copyright ownership. The District Court granted a preliminary injunction, ordering the sculpture's return. After a 2-day bench trial, the District Court declared that "Third World America" was a "work made for hire" under § 101 of the Copyright Act and that Snyder, as trustee for CCNV, was the exclusive owner of the copyright in the sculpture. 652 F. Supp., at 1457. The court reasoned that Reid had been an "employee" of CCNV within the meaning of § 101(1) because CCNV was the motivating force in the statue's production. Snyder and [736] other CCNV members, the court explained, "conceived the idea of a contemporary Nativity scene to contrast with the national celebration of the season," and "directed enough of [Reid's] effort to assure that, in the end, he had produced what they, not he, wanted." Id., at 1456.

The Court of Appeals for the District of Columbia Circuit reversed and remanded, holding that Reid owned the copyright because "Third World America" was not a work for hire. 270 U. S. App. D. C. 26, 35, 846 F. 2d 1485, 1494 (1988). Adopting what it termed the "literal interpretation" of the Act as articulated by the Fifth Circuit in Easter Seal Society for Crippled Children & Adults of Louisiana, Inc. v. Playboy Enterprises, 815 F. 2d 323, 329 (1987), cert. denied, 485 U. S. 981 (1988), the court read § 101 as creating "a simple dichotomy in fact between employees and independent contractors." 270 U. S. App. D. C., at 33, 846 F. 2d, at 1492. Because, under agency law, Reid was an independent contractor, the court concluded that the work was not "prepared by an employee" under § 101(1). Id., at 35, 846 F. 2d, at 1494. Nor was the sculpture a "work made for hire" under the second subsection of § 101 (hereinafter § 101(2)): sculpture is not one of the nine categories of works enumerated in that subsection, and the parties had not agreed in writing that the sculpture would be a work for hire. Ibid. The court suggested that the sculpture nevertheless may have been jointly authored by CCNV and Reid, id., at 36, 846 F. 2d, at 1495, and remanded for a determination whether the sculpture is indeed a joint work under the Act, id., at 39-40, 846 F. 2d, at 1498-1499.

We granted certiorari to resolve a conflict among the Courts of Appeals over the proper construction of the "work made for hire" provisions of the Act.^[2] 488 U. S. 940 (1988). We now affirm.

[737] II

A

The Copyright Act of 1976 provides that copyright ownership "vests initially in the author or authors of the work." 17 U. S. C. § 201(a). As a general rule, the author is the party who actually creates the work, that is, the person who translates an idea into a fixed, tangible expression entitled to copyright protection. § 102. The Act carves out an important exception, however, for "works made for hire."^[3] If the work is for hire, "the employer or other person for whom the work was prepared is considered the author" and owns the copyright, unless there is a written agreement to the contrary. § 201(b). Classifying a work as "made for hire" determines not only the initial ownership of its copyright, but also the copyright's duration, § 302(c), and the owners' renewal rights, § 304(a), termination rights, § 203(a), and right to import certain goods bearing the copyright, § 601(b)(1). See 1 M. Nimmer & D. Nimmer, Nimmer on Copyright § 5.03 [A], pp. 5-10 (1988). The contours of the work for hire doctrine therefore carry profound significance for freelance creators — including artists, writers, photographers, designers, composers, and computer programmers — and for the publishing, advertising, music, and other industries which commission their works.^[4]

[738] Section 101 of the 1976 Act provides that a work is "for hire" under two sets of circumstances:

"(1) a work prepared by an employee within the scope of his or her employment; or

(2) a work specially ordered or commissioned for use as a contribution to a collective work, as a part of a motion picture or other audiovisual work, as a translation, as a supplementary work, as a compilation, as an instructional text, as a test, as answer material for a test, or as an atlas, if the parties expressly agree in a written instrument signed by them that the work shall be considered a work made for hire."^[5]

Petitioners do not claim that the statue satisfies the terms of § 101(2). Quite clearly, it does not. Sculpture does not fit within any of the nine categories of "specially ordered or commissioned" works enumerated in that subsection, and no written agreement between the parties establishes "Third World America" as a work for hire.

The dispositive inquiry in this case therefore is whether "Third World America" is "a work prepared by an employee within the scope of his or her employment" under § 101(1). The Act does not define these terms. In the absence of such guidance, four interpretations have emerged. The first holds that a work is prepared by an employee whenever the hiring party^[6] retains the right to control the product. See Peregrine v. Lauren Corp., 601 F. Supp. 828, 829 (Colo. 1985); Clarkstown v. Reeder, 566 F. Supp. 137, 142 (SDNY [739] 1983). Petitioners take this view. Brief for Petitioners 15; Tr. of Oral Arg. 12. A second, and closely related, view is that a work is prepared by an employee under § 101(1) when the hiring party has actually wielded control with respect to the creation of a particular work. This approach was formulated by the Court of Appeals for the Second Circuit, Aldon Accessories Ltd. v. Spiegel, Inc., 738 F. 2d 548, cert. denied, 469 U. S. 982 (1984), and adopted by the Fourth Circuit, Brunswick Beacon, Inc. v. Schock-Hopchas Publishing Co., 810 F. 2d 410 (1987), the Seventh Circuit, Evans Newton, Inc. v. Chicago Systems Software, 793 F. 2d 889, cert. denied, 479 U. S. 949 (1986), and, at times, by petitioners, Brief for Petitioners 17. A third view is that the term "employee" within § 101(1) carries its common-law agency law meaning. This view was endorsed by the Fifth Circuit in Easter Seal Society for Crippled Children & Adults of Louisiana, Inc. v. Playboy Enterprises, 815 F. 2d 323 (1987), and by the Court of Appeals below. Finally, respondent and numerous amici curiae contend that the term "employee" only refers to "formal, salaried" employees. See, e. g., Brief for Respondent 23-24; Brief for Register of Copyrights as Amicus Curiae 7. The Court of Appeals for the Ninth Circuit recently adopted this view. See Dumas v. Gommerman, 865 F. 2d 1093 (1989).

The starting point for our interpretation of a statute is always its language. Consumer Product Safety Comm'n v. GTE Sylvania, Inc., 447 U. S. 102, 108 (1980). The Act nowhere defines the terms "employee" or "scope of employment." It is, however, well established that "[w]here Congress uses terms that have accumulated settled meaning under . . . the common law, a court must infer, unless the statute otherwise dictates, that Congress means to incorporate the established meaning of these terms." NLRB v. Amax Coal Co., 453 U. S. 322, 329 (1981); see also Perrin v. United States, 444 U. S. 37, 42 (1979). In the past, when Congress has used the term "employee" without defining it, [740] we have concluded that Congress intended to describe the conventional master-servant relationship as understood by common-law agency doctrine. See, e. g., Kelley v. Southern Pacific Co., 419 U. S. 318, 322-323 (1974); Baker v. Texas & Pacific R. Co., 359 U. S. 227, 228 (1959) (per curiam); Robinson v. Baltimore & Ohio R. Co., 237 U. S. 84, 94 (1915). Nothing in the text of the work for hire provisions indicates that Congress used the words "employee" and "employment" to describe anything other than " 'the conventional relation of employer and employe.' " Kelley, supra, at 323, quoting Robinson, supra, at 94; cf. NLRB v. Hearst Publications, Inc., 322 U. S. 111, 124-132 (1944) (rejecting agency law conception of employee for purposes of the National Labor Relations Act where structure and context of statute indicated broader definition). On the contrary, Congress' intent to incorporate the agency law definition is suggested by § 101(1)'s use of the term, "scope of employment," a widely used term of art in agency law. See Restatement (Second) of Agency § 228 (1958) (hereinafter Restatement).

In past cases of statutory interpretation, when we have concluded that Congress intended terms such as "employee," "employer," and "scope of employment" to be understood in light of agency law, we have relied on the general common law of agency, rather than on the law of any particular State, to give meaning to these terms. See, e. g., Kelley, 419 U. S., at 323-324, and n. 5; id., at 332 (Stewart, J., concurring in judgment); Ward v. Atlantic Coast Line R. Co., 362 U. S. 396, 400 (1960); Baker, supra, at 228. This practice reflects the fact that "federal statutes are generally intended to have uniform nationwide application." Mississippi Band of Choctaw Indians v. Holyfield, ante, at 43. Establishment of a federal rule of agency, rather than reliance on state agency law, is particularly appropriate here given the Act's express objective of creating national, uniform copyright law by broadly pre-empting state statutory and common-law copyright regulation. See 17 U. S. C. § 301(a). We thus [741] agree with the Court of Appeals that the term "employee" should be understood in light of the general common law of agency.

In contrast, neither test proposed by petitioners is consistent with the text of the Act. The exclusive focus of the right to control the product test on the relationship between the hiring party and the product clashes with the language of § 101(1), which focuses on the relationship between the hired and hiring parties. The right to control the product test also would distort the meaning of the ensuing subsection, § 101(2). Section 101 plainly creates two distinct ways in which a work can be deemed for hire: one for works prepared by employees, the other for those specially ordered or commissioned works which fall within one of the nine enumerated categories and are the subject of a written agreement. The right to control the product test ignores this dichotomy by transforming into a work for hire under § 101(1) any "specially ordered or commissioned" work that is subject to the supervision and control of the hiring party. Because a party who hires a "specially ordered or commissioned" work by definition has a right to specify the characteristics of the product desired, at the time the commission is accepted, and frequently until it is completed, the right to control the product test would mean that many works that could satisfy § 101(2) would already have been deemed works for hire under § 101(1). Petitioners' interpretation is particularly hard to square with § 101(2)'s enumeration of the nine specific categories of specially ordered or commissioned works eligible to be works for hire, e. g., "a contribution to a collective work," "a part of a motion picture," and "answer material for a test." The unifying feature of these works is that they are usually prepared at the instance, direction, and risk of a publisher or producer.^[7] By their very nature, therefore, these types of [742] works would be works by an employee under petitioners' right to control the product test.

The actual control test, articulated by the Second Circuit in Aldon Accessories, fares only marginally better when measured against the language and structure of § 101. Under this test, independent contractors who are so controlled and supervised in the creation of a particular work are deemed "employees" under § 101(1). Thus work for hire status under § 101(1) depends on a hiring party's actual control of, rather than right to control, the product. Aldon Accessories, 738 F. 2d, at 552. Under the actual control test, a work for hire could arise under § 101(2), but not under § 101(1), where a party commissions, but does not actually control, a product which falls into one of the nine enumerated categories. Nonetheless, we agree with the Court of Appeals for the Fifth Circuit that "[t]here is simply no way to milk the 'actual control' test of Aldon Accessories from the language of the statute." Easter Seal Society, 815 F. 2d, at 334. Section 101 clearly delineates between works prepared by an employee and commissioned works. Sound though other distinctions might be as a matter of copyright policy, there is no statutory support for an additional dichotomy between commissioned works that are actually controlled and supervised by the hiring party and those that are not.

We therefore conclude that the language and structure of § 101 of the Act do not support either the right to control the product or the actual control approaches.^[8] The structure of [743] § 101 indicates that a work for hire can arise through one of two mutually exclusive means, one for employees and one for independent contractors, and ordinary cannons of statutory interpretation indicate that the classification of a particular hired party should be made with reference to agency law.

This reading of the undefined statutory terms finds considerable support in the Act's legislative history. Cf. Diamond v. Chakrabarty, 447 U. S. 303, 315 (1980). The Act, which almost completely revised existing copyright law, was the product of two decades of negotiation by representatives of creators and copyright-using industries, supervised by the Copyright Office and, to a lesser extent, by Congress. See Mills Music, Inc. v. Snyder, 469 U. S. 153, 159 (1985); Litman, Copyright, Compromise, and Legislative History, 72 Cornell L. Rev. 857, 862 (1987). Despite the lengthy history of negotiation and compromise which ultimately produced the Act, two things remained constant. First, interested parties and Congress at all times viewed works by employees and commissioned works by independent contractors as separate entities. Second, in using the term "employee," the parties and Congress meant to refer to a hired party in a conventional employment relationship. These factors militate in favor of the reading we have found appropriate.

In 1955, when Congress decided to overhaul copyright law, the existing work for hire provision was § 62 of the 1909 Copyright Act, 17 U. S. C. § 26 (1976 ed.) (1909 Act). It provided that "the word 'author' shall include an employer in [744] the case of works made for hire."^[9] Because the 1909 Act did not define "employer" or "works made for hire," the task of shaping these terms fell to the courts. They concluded that the work for hire doctrine codified in § 62 referred only to works made by employees in the regular course of their employment. As for commissioned works, the courts generally presumed that the commissioned party had impliedly agreed to convey the copyright, along with the work itself, to the hiring party. See, e. g., Shapiro, Bernstein & Co. v. Jerry Vogel Music Co., 221 F. 2d 569, 570, rev'd, 223 F. 2d 252 (CA2 1955); Yardley v. Houghton Mifflin Co., 108 F. 2d 28, 31 (CA2 1939), cert. denied, 309 U. S. 686 (1940).^[10]

In 1961, the Copyright Office's first legislative proposal retained the distinction between works by employees and works by independent contractors. See Report of the Register of Copyrights on the General Revision of the U. S. Copyright Law, 87th Cong., 1st Sess., Copyright Law Revision 86-87 (H. R. Judiciary Comm. Print 1961). After numerous meetings with representatives of the affected parties, the Copyright Office issued a preliminary draft bill in 1963. Adopting the Register's recommendation, it defined "work [745] made for hire" as "a work prepared by an employee within the scope of the duties of his employment, but not including a work made on special order or commission." Preliminary Draft for Revised U. S. Copyright Law and Discussions and Comments on the Draft, 88th Cong., 2d Sess., Copyright Law Revision, Part 3, p. 15, n. 11 (H. R. Judiciary Comm. Print 1964) (hereinafter Preliminary Draft).

In response to objections by book publishers that the preliminary draft bill limited the work for hire doctrine to "employees,"^[11] the 1964 revision bill expanded the scope of the work for hire classification to reach, for the first time, commissioned works. The bill's language, proposed initially by representatives of the publishing industry, retained the definition of work for hire insofar as it referred to "employees," but added a separate clause covering commissioned works, without regard to the subject matter, "if the parties so agree in writing." S. 3008, H. R. 11947, H. R. 12354, 88th Cong., 2d Sess., § 54 (1964), reproduced in 1964 Revision Bill with Discussions and Comments, 89th Cong., 1st Sess., Copyright Law Revision, pt. 5, p. 31 (H. R. Judiciary Comm. Print 1965). Those representing authors objected that the added provision would allow publishers to use their superior bargaining position to force authors to sign work for hire agreements, [746] thereby relinquishing all copyright rights as a condition of getting their books published. See Supplementary Report, at 67.

In 1965, the competing interests reached a historic compromise, which was embodied in a joint memorandum submitted to Congress and the Copyright Office,^[12] incorporated into the 1965 revision bill, and ultimately enacted in the same form and nearly the same terms 11 years later, as § 101 of the 1976 Act. The compromise retained as subsection (1) the language referring to "a work prepared by an employee within the scope of his employment." However, in exchange for concessions from publishers on provisions relating to the termination of transfer rights, the authors consented to a second subsection which classified four categories of commissioned works as works for hire if the parties expressly so agreed in writing: works for use "as a contribution to a collective work, as a part of a motion picture, as a translation, or as supplementary work." S. 1006, H. R. 4347, H. R. 5680, H. R. 6835, 89th Cong., 1st Sess., § 101 (1965). The interested parties selected these categories because they concluded that these commissioned works, although not prepared by employees and thus not covered by the first subsection, nevertheless should be treated as works for hire because they were ordinarily prepared "at the instance, direction, and risk of a publisher or producer." Supplementary Report, at 67. The Supplementary Report emphasized that only the "four special cases specifically mentioned" could qualify as works made for hire; "[o]ther works made on special order or commission would not come within the definition." Id., at 67-68.

[747] In 1966, the House Committee on the Judiciary endorsed this compromise in the first legislative Report on the revision bills. See H. R. Rep. No. 2237, 89th Cong., 2d Sess., 114, 116 (1966). Retaining the distinction between works by employees and commissioned works, the House Committee focused instead on "how to draw a statutory line between those works written on special order or commission that should be considered as works made for hire, and those that should not." Id., at 115. The House Committee added four other enumerated categories of commissioned works that could be treated as works for hire: compilations, instructional texts, tests, and atlases. Id., at 116. With the single addition of "answer material for a test," the 1976 Act, as enacted, contained the same definition of works made for hire as did the 1966 revision bill, and had the same structure and nearly the same terms as the 1966 bill.^[13] Indeed, much of the language of the 1976 House and Senate Reports was borrowed from the Reports accompanying the earlier drafts. See, e. g., H. R. Rep. No. 94-1476, p. 121 (1976); S. Rep. No. 94-473, p. 105 (1975).

Thus, the legislative history of the Act is significant for several reasons. First, the enactment of the 1965 compromise with only minor modifications demonstrates that Congress intended to provide two mutually exclusive ways for works to acquire work for hire status: one for employees and [748] the other for independent contractors. Second, the legislative history underscores the clear import of the statutory language: only enumerated categories of commissioned works may be accorded work for hire status. The hiring party's right to control the product simply is not determinative. See Note, The Creative Commissioner: Commissioned Works Under the Copyright Act of 1976, 62 N. Y. U. L. Rev. 373, 388 (1987). Indeed, importing a test based on a hiring party's right to control, or actual control of, a product would unravel the " 'carefully worked out compromise aimed at balancing legitimate interests on both sides.' " H. R. Rep. No. 2237, supra, at 114, quoting Supplemental Report, at 66.^[14]

We do not find convincing petitioners' contrary interpretation of the history of the Act. They contend that Congress, in enacting the Act, meant to incorporate a line of cases decided under the 1909 Act holding that an employment relationship exists sufficient to give the hiring party copyright ownership whenever that party has the right to control or supervise the artist's work. See, e. g., Siegel v. National Periodical Publications, Inc., 508 F. 2d 909, 914 (CA2 1974); Picture Music, Inc. v. Bourne, Inc., 457 F. 2d 1213, 1216 (CA2), cert. denied, 409 U. S. 997 (1972); Scherr v. Universal Match Corp., 417 F. 2d 497, 500 (CA2 1969), cert. denied, 397 U. S. 936 (1970); Brattleboro Publishing Co. v. Winmill Publishing Corp., 369 F. 2d 565, 567-568 (CA2 1966). In support of this position, petitioners note: "Nowhere in the 1976 Act or in the Act's legislative history does Congress state that it intended to jettison the control standard or otherwise to reject the pre-Act judicial approach to identifying a [749] work for hire employment relationship." Brief for Petitioners 20, citing Aldon Accessories, 738 F. 2d, at 552.

We are unpersuaded. Ordinarily, "Congress' silence is just that — silence." Alaska Airlines, Inc. v. Brock, 480 U. S. 678, 686 (1987). Petitioners' reliance on legislative silence is particularly misplaced here because the text and structure of § 101 counsel otherwise. See Bourjaily v. United States, 483 U. S. 171, 178 (1987); Harrison v. PPG Industries, Inc., 446 U. S. 578, 592 (1980).^[15] Furthermore, the structure of the work for hire provisions was fully developed in 1965, and the text was agreed upon in essentially final form by 1966. At that time, however, the courts had applied the work for hire doctrine under the 1909 Act exclusively to traditional employees. Indeed, it was not until after the 1965 compromise was forged and adopted by Congress^[16] that a federal court for the first time applied the work for hire doctrine to commissioned works. See, e. g., Brattleboro Publishing Co., supra, at 567-568. Congress certainly could not have "jettisoned" a line of cases that had not yet been decided.

Finally, petitioners' construction of the work for hire provisions would impede Congress' paramount goal in revising the 1976 Act of enhancing predictability and certainty of copyright ownership. See H. R. Rep. No. 94-1476, supra, at 129. In a "copyright marketplace," the parties negotiate with an expectation that one of them will own the copyright in the completed work. Dumas, 865 F. 2d, at 1104-1105, [750] n. 18. With that expectation, the parties at the outset can settle on relevant contractual terms, such as the price for the work and the ownership of reproduction rights.

To the extent that petitioners endorse an actual control test,^[17] CCNV's construction of the work for hire provisions prevents such planning. Because that test turns on whether the hiring party has closely monitored the production process, the parties would not know until late in the process, if not until the work is completed, whether a work will ultimately fall within § 101(1). Under petitioners' approach, therefore, parties would have to predict in advance whether the hiring party will sufficiently control a given work to make it the author. "If they guess incorrectly, their reliance on 'work for hire' or an assignment may give them a copyright interest that they did not bargain for." Easter Seal Society, 815 F. 2d, at 333; accord, Dumas, supra, at 1103. This understanding of the work for hire provisions clearly thwarts Congress' goal of ensuring predictability through advance planning. Moreover, petitioners' interpretation "leaves the door open for hiring parties, who have failed to get a full assignment of copyright rights from independent contractors falling outside the subdivision (2) guidelines, to unilaterally obtain work-made-for-hire rights years after the work has been completed as long as they directed or supervised the work, a standard that is hard not to meet when one is a hiring party." Hamilton, Commissioned Works as Works Made for Hire Under the 1976 Copyright Act: Misinterpretation and Injustice, 135 U. Pa. L. Rev. 1281, 1304 (1987).

In sum, we must reject petitioners' argument. Transforming a commissioned work into a work by an employee on the basis of the hiring party's right to control, or actual control of, the work is inconsistent with the language, structure, and legislative history of the work for hire provisions. To [751] determine whether a work is for hire under the Act, a court first should ascertain, using principles of general common law of agency, whether the work was prepared by an employee or an independent contractor. After making this determination, the court can apply the appropriate subsection of § 101.

B

We turn, finally, to an application of § 101 to Reid's production of "Third World America." In determining whether a hired party is an employee under the general common law of agency, we consider the hiring party's right to control the manner and means by which the product is accomplished.^[18] Among the other factors relevant to this inquiry are the skill required;^[19] the source of the instrumentalities and tools;^[20] the location of the work;^[21] the duration of the relationship between the parties;^[22] whether the hiring party has the right to assign additional projects to the hired party;^[23] the extent of the hired party's discretion over when and how long to work;^[24] the method of payment;^[25] the hired party's role in hiring and [752] paying assistants;^[26] whether the work is part of the regular business of the hiring party;^[27] whether the hiring party is in business;^[28] the provision of employee benefits;^[29] and the tax treatment of the hired party.^[30] See Restatement § 220(2) (setting forth a nonexhaustive list of factors relevant to determining whether a hired party is an employee).^[31] No one of these factors is determinative. See Ward, 362 U. S., at 400; Hilton Int'l Co. v. NLRB, 690 F. 2d 318, 321 (CA2 1982).

Examining the circumstances of this case in light of these factors, we agree with the Court of Appeals that Reid was not an employee of CCNV but an independent contractor. 270 U. S. App. D. C., at 35, n. 11, 846 F. 2d, at 1494, n. 11. True, CCNV members directed enough of Reid's work to ensure that he produced a sculpture that met their specifications. 652 F. Supp., at 1456. But the extent of control the hiring party exercises over the details of the product is not dispositive. Indeed, all the other circumstances weigh heavily against finding an employment relationship. Reid is a sculptor, a skilled occupation. Reid supplied his own tools. He worked in his own studio in Baltimore, making daily supervision of his activities from Washington practicably impossible. Reid was retained for less than two months, a relatively [753] short period of time. During and after this time, CCNV had no right to assign additional projects to Reid. Apart from the deadline for completing the sculpture, Reid had absolute freedom to decide when and how long to work. CCNV paid Reid $15,000, a sum dependent on "completion of a specific job, a method by which independent contractors are often compensated." Holt v. Winpisinger, 258 U. S. App. D. C. 343, 351, 811 F. 2d 1532, 1540 (1987). Reid had total discretion in hiring and paying assistants. "Creating sculptures was hardly 'regular business' for CCNV." 270 U. S. App. D. C., at 35, n. 11, 846 F. 2d, at 1494, n. 11. Indeed, CCNV is not a business at all. Finally, CCNV did not pay payroll or Social Security taxes, provide any employee benefits, or contribute to unemployment insurance or workers' compensation funds.

Because Reid was an independent contractor, whether "Third World America" is a work for hire depends on whether it satisfies the terms of § 101(2). This petitioners concede it cannot do. Thus, CCNV is not the author of "Third World America" by virtue of the work for hire provisions of the Act. However, as the Court of Appeals made clear, CCNV nevertheless may be a joint author of the sculpture if, on remand, the District Court determines that CCNV and Reid prepared the work "with the intention that their contributions be merged into inseparable or interdependent parts of a unitary whole." 17 U. S. C. § 101.^[32] In that case, CCNV and Reid would be co-owners of the copyright in the work. See § 201(a).

For the aforestated reasons, we affirm the judgment of the Court of Appeals for the District of Columbia Circuit.

It is so ordered.

[*] Briefs of amici curiae urging reversal were filed for the Computer and Business Equipment Manufacturers Association et al. by Richard Dannay and Morton David Goldberg; for Intellectual Property Owners, Inc., by Donald W. Banner and Herbert C. Wamsley; and for Magazine Publishers of America, Inc., by Slade R. Metcalf and Victor A. Kovner.

Briefs of amici curiae urging affirmance were filed for the American Society of Magazine Photographers et al. by Charles D. Ossola; for The Professional Photographers of America, Inc., by David Ladd, David E. Leibowitz, Bruce G. Joseph, and Thomas W. Kirby; and for Volunteer Lawyers for the Arts, Inc., et al. by Irwin Karp.

Arthur J. Levine and William L. LaFuze filed a brief for the American Intellectual Property Law Association as amicus curiae.

[1] Purtee was named as a defendant but never appeared or claimed any interest in the statue.

[2] Compare Easter Seal Society for Crippled Children & Adults of Louisiana, Inc. v. Playboy Enterprises, 815 F. 2d 323 (CA5 1987), (agency law determines who is an employee under § 101), cert. denied, 485 U. S. 981 (1988), with Brunswick Beacon, Inc. v. Schock-Hopchas Publishing Co., 810 F. 2d 410 (CA4 1987) (supervision and control standard determines who is an employee under § 101); Evans Newton, Inc. v. Chicago Systems Software, 793 F. 2d 889 (CA7) (same), cert. denied, 479 U. S. 949 (1986); and Aldon Accessories Ltd. v. Spiegel, Inc., 738 F. 2d 548 (CA2) (same), cert. denied, 469 U. S. 982 (1984). See also Dumas v. Gommerman, 865 F. 2d 1093 (CA9 1989) (a multifactor formal, salaried employee test determines who is an employee under § 101).

[3] We use the phrase "work for hire" interchangeably with the more cumbersome statutory phrase "work made for hire."

[4] As of 1955, approximately 40 percent of all copyright registrations were for works for hire, according to a Copyright Office study. See Varmer, Works Made for Hire and On Commission, in Studies Prepared for the Subcommittee on Patents, Trademarks, and Copyrights of the Senate Committee on the Judiciary, Study No. 13, 86th Cong., 2d Sess., 139, n. 49 (Comm. Print 1960) (hereinafter Varmer, Works Made for Hire). The Copyright Office does not keep more recent statistics on the number of work for hire registrations.

[5] Section 101 of the Act defines each of the nine categories of "specially ordered or commissioned" works.

[6] By "hiring party," we mean to refer to the party who claims ownership of the copyright by virtue of the work for hire doctrine.

[7] See Supplementary Report of the Register of Copyrights on the General Revision of the U. S. Copyright Law: 1965 Revision Bill, 89th Cong., 1st Sess., Copyright Law Revision, pt. 6, pp. 66-67 (H. R. Judiciary Comm. Print 1965) (hereinafter Supplementary Report); Hardy, Copyright Law's Concept of Employment — What Congress Really Intended, 35 J. Copr. Soc. USA 210, 244-245 (1988).

[8] We also reject the suggestion of respondent and amici that the § 101(1) term "employee" refers only to formal, salaried employees. While there is some support for such a definition in the legislative history, see Varmer, Works Made for Hire 130; n. 11, infra, the language of § 101(1) cannot support it. The Act does not say "formal" or "salaried" employee, but simply "employee." Moreover, respondent and those amici who endorse a formal, salaried employee test do not agree upon the content of this test. Compare, e. g., Brief for Respondent 37 (hired party who is on payroll is an employee within § 101(1) with Tr. of Oral Arg. 31 (hired party who receives a salary or commissions regularly is an employee within § 101(1)); and Brief for Volunteer Lawyers for the Arts, Inc., et al. as Amici Curiae 4 (hired party who receives a salary and is treated as an employee for Social Security and tax purposes is an employee within § 101(1)). Even the one Court of Appeals to adopt what it termed a formal, salaried employee test in fact embraced an approach incorporating numerous factors drawn from the agency law definition of employee which we endorse. See Dumas, 865 F. 2d, at 1104.

[9] The concept of works made for hire first arose in controversies over copyright ownership involving works produced by persons whom all parties agreed were employees. See, e. g., Colliery Engineer Co. v. United Correspondence Schools Co., 94 F. 152 (CC SDNY 1899); Little v. Gould, 15 F. Cas. 612 (No. 8,395) (CC NDNY 1852). This Court first took note of the work for hire doctrine in Bleistein v. Donaldson Lithographing Co., 188 U. S. 239, 248 (1903), where we found that an employer owned the copyright to advertisements that had been created by an employee in the course of his employment. Bleistein did not, however, purport to define "employee."

[10] See Varmer, Works Made for Hire 130; Fidlow, The "Works Made for Hire" Doctrine and the Employee/Independent Contractor Dichotomy: The Need for Congressional Clarification, 10 Hastings Comm. Ent. L. J. 591, 600-601 (1988). Indeed, the Varmer study, which was commissioned by Congress as part of the revision process, itself contained separate subsections labeled "Works Made for Hire" and "Works Made on Commission." It nowhere indicated that the two categories might overlap or that commissioned works could be made by an employee.

[11] See, e. g., Preliminary Draft, at 259 (statement of Horace S. Manges, Joint Committee of the American Book Publishers Council and the American Textbook Publishers Institute) ("There would be a necessity of putting people on the payroll whom the employers wouldn't want to put on the payroll, and where the employees would prefer to work as independent contractors"); id., at 272 (statement of Saul N. Rittenberg, MGM) ("[T]he present draft has given more emphasis to formalism than necessary. If I commission a work from a man, ordering a work specially for my purposes, and I pay for it, what difference does it make whether I put him under an employment contract or establish an independent contractor relationship?"); id., at 260 (statement of John R. Peterson, American Bar Association) ("I don't think there is any valid philosophical or economic difference between the situation in which you have a man on a continuing basis of orders which justifies placing him on your payroll, and the situation in which you give him a particular order for a particular job").

[12] The parties to the joint memorandum included representatives of the major competing interests involved in the copyright revision process: publishers and authors, composers, and lyricists. See Copyright Law Revision: Hearings on H. R. 4347, 5680, 6831, 6835 before Subcommittee No. 3 of the House Committee on the Judiciary, 89th Cong., 1st Sess., pt. 1, p. 134 (1965).

[13] An attempt to add "photographic or other portrait[s]," S. Rep. No. 94-473, p. 4 (1975), to the list of commissioned works eligible for work for hire status failed after the Register of Copyrights objected:

"The addition of portraits to the list of commissioned works that can be made into 'works made for hire' by agreement of the parties is difficult to justify. Artists and photographers are among the most vulnerable and poorly protected of all the beneficiaries of the copyright law, and it seems clear that, like serious composers and choreographers, they were not intended to be treated as 'employees' under the carefully negotiated definition in section 101." Second Supplementary Report of the Register of Copyrights on the General Revision of the U. S. Copyright Law: 1975 Revision Bill, Chapter XI, pp. 12-13.

[14] Strict adherence to the language and structure of the Act is particularly appropriate where, as here, a statute is the result of a series of carefully crafted compromises. See Rodriguez v. Compass Shipping Co., 451 U. S. 596, 617 (1981); United States v. Sisson, 399 U. S. 267, 291, 298 (1970).

[15] In framing other provisions of the Act, Congress indicated when it intended to incorporate existing case law. See, e. g., H. R. Rep. No. 94-1476, p. 121 (1976) ("There is . . . no need for a specific statutory provision concerning the rights and duties of the coowners [sic] of a work; court-made law on this point is left undisturbed"); S. Rep. No. 94-473, supra, at 104 (same).

[16] Over the course of the copyright revision process, Congress frequently endorsed a negotiated compromise which years later in 1976 it formally enacted with only minor revisions. See Mills Music, Inc. v. Snyder, 469 U. S. 153, 160-161 (1985).

[17] Petitioners concede that, as a practical matter, it is often difficult to demonstrate the existence of a right to control without evidence of the actual exercise of that right. See Murray v. Gelderman, 566 F. 2d 1307, 1310-1311 (CA5 1978).

[18] See, e. g., Hilton Int'l Co. v. NLRB, 690 F. 2d 318, 320 (CA2 1982); NLRB v. Maine Caterers, Inc., 654 F. 2d 131, 133 (CA1 1981), cert denied, 455 U. S. 940 (1982); Restatement § 220(1).

[19] See, e. g., Bartels v. Birmingham, 332 U. S. 126, 132 (1947); Hilton Int'l Co., supra, at 320; NLRB v. A. Duie Pyle, Inc., 606 F. 2d 379, 382 (CA3 1979); Restatement § 220(2)(d).

[20] See, e. g., NLRB v. United Ins. Co. of America, 390 U. S. 254, 258 (1968); United States v. Silk, 331 U. S. 704, 717, 718 (1947); Dumas, 865 F. 2d, at 1105; Restatement § 220(2)(e).

[21] See, e. g., United Ins. Co., supra, at 258; Dumas, supra, at 1105; Darden v. Nationwide Mutual Ins. Co., 796 F. 2d 701, 705 (CA4 1986); Restatement § 220(2)(e).

[22] See, e. g., United Ins. Co., supra, at 259; Bartels, supra, at 132; Restatement § 220(2)(f).

[23] See, e. g., Dumas, supra, at 1105.

[24] See, e. g., United Ins. Co., supra, at 258; Short v. Central States, Southeast & Southwest Areas Pension Fund, 729 F. 2d 567, 574 (CA8 1984).

[25] See, e. g., Dumas, supra, at 1105; Darden, supra, at 705; Holt v. Winpisinger, 258 U. S. App. D. C. 343, 351, 811 F. 2d 1532, 1540 (1987); Restatement § 220(2)(g).

[26] See, e. g., Bartels, supra, at 132; Silk, supra, at 719; Darden, supra, at 705; Short, supra, at 574.

[27] See, e. g., United Ins. Co., supra, at 259; Silk, supra, at 718; Dumas, supra, at 1105; Hilton Int'l Co., supra, at 321; Restatement § 220(2)(h).

[28] See, e. g., Restatement § 220(2)(j).

[29] See, e. g., United Ins. Co., supra, at 259; Dumas, supra, at 1105; Short, supra, at 574.

[30] See, e. g., Dumas, supra, at 1105.

[31] In determining whether a hired party is an employee under the general common law of agency, we have traditionally looked for guidance to the Restatement of Agency. See, e. g., Kelley v. Southern Pacific Co., 419 U. S. 318, 323-324, and n. 5 (1974); id., at 332 (Stewart, J., concurring in judgment); Ward v. Atlantic Coast Line R. Co., 362 U. S. 396, 400 (1960); Baker v. Texas & Pacific R. Co., 359 U. S. 227, 228 (1959).

[32] Neither CCNV nor Reid sought review of the Court of Appeals' remand order. We therefore have no occasion to pass judgment on the applicability of the Act's joint authorship provisions to this case.