Re: A right not to be compelled to create expression?
Eugene invokes *Wooley *to make the following comparison: If Maynard can't be required to carry the motto 'Live Free or Die' on his car, then a Maynard who is a generally will-take-most-commissions freelance writer can’t be required to write a press release or organizational newsletter that expresses the view 'Scientology is good.' Should it not matter that *Wooley* -- like *Barnette*, but unlike Eugene's freelance-writer hypo -- involved a content-specific regulation by the government directed at speech (declare Live Free or Die or pledge Allegiance to the flag), not a broad conduct regulation of commercial services offered to the public (don't discriminate based on a customer's race, religion, sex, marital status, or sexual-orientation) that ends up having an incidental effect on speech in a particular case? Eugene has been supportive of the *Smith *Court's distinction between regulations directed at religion and incidental burdens in the free exercise context; why shouldn't a similar distinction be made in the free speech context? Also, here's an alternative comparison that would seem to flow just as logically from Eugene's position: If Maynard can't be required to carry the motto 'Live Free or Die' on his car, a Maynard who runs a bakery and generally personalizes cakes for most occasions can't be required to personalize a cake that expresses the view that an [interracial, inter-faith, second, same-sex] marriage anniversary is a happy occasion. I'm skeptical that a bakery owner's free speech interests are just as threatened by the requirement to provide an interracial couple with a Happy Anniversary, Richard and Mildred cake as Maynard's rights were threatened by having to display the state's Live Free or Die message on his car. My skepticism is driven by (1) the distinction between government regulation directed at speech and government regulation that incidentally burdens speech, (2) the distinction between the commercial and non-commercial realms that Justice O'Connor wrote about in *Jaycees*, and (3) the distinction between the internal activities of a church or membership organization and external activities with the public at large. Of course, one might invoke *Dale *to respond to any proffered distinction between speech-specific burdens and incidental burdens, and some have also viewed *Dale *as rejecting O'Connor's commercial/non-commercial distinction. But it seems to me that *Dale *is actually premised on the latter distinction, and that both *Dale* and *Hosanna-Tabor *support the proposition that incidental burdens are of greater concern when they regulate the internal operations of churches and membership associations than when they regulate the activities of commercial entities or other external conduct in society. *See Dale *530 U.S. at 657 (As the definition of 'public accommodation' has expanded from clearly commercial entities, such as restaurants, bars, and hotels, to membership organizations such as the Boy Scouts, the potential for conflict between state public accommodations laws and the First Amendment rights of organizations has increased.); *Hosanna-Tabor* 132 S.Ct. at 707 (*Smith* involved government regulation of only outward physical acts. The present case, in contrast, concerns government interference with an internal church decision that affects the faith and mission of the church itself.).* See generally P **rince v. Massachusetts*, 321 U.S. 158, 177-78 (1944) (Jackson, J., concurring in the result) (Religious activities which concern only members of the faith are and ought to be free—as nearly absolutely free as anything can be. But beyond these, many religious denominations or sects engage in collateral and secular activities intended to obtain means from unbelievers to sustain the worshippers and their leaders…. All such money-raising activities on a public scale are, I think, Caesar’s affairs and may be regulated by the State ….); *United States v. Lee*, 455 U.S. 252, 261 (1982) (When followers of a particular sect enter into commercial activity as a matter of choice, the limits they accept on their own conduct as a matter of conscience and faith are not to be superimposed on the statutory schemes which are binding on others in that activity.). On Sat, Aug 24, 2013 at 9:37 AM, Volokh, Eugene vol...@law.ucla.edu wrote: Well, New Mexico law covers “any establishment that provides or offers its services ... to the public, but does not include a[n] ... establishment that is by its nature and use distinctly private.” That does mean that a freelance writer who only writes on behalf of a limited set of clients, rather than offering his services to the public at large, wouldn’t be covered by this particular statute. But a freelance writer who does promote his services to the public would qualify, even if he exercises some selectivity. (Indeed, Huguenin says that there are other photography commissions she won’t take, such as for
Re: A right not to be compelled to create expression?
I'm pretty sure that Eugene is correct--freelance wedding photographs are generally protected under the category of pictorial, graphic, or sculptural works, and as such are not eligible to be works for hire. (Photographs submitted to magazines or newspapers are treated differently, as they are contributions to a collective work.) Ownership of the copyright may be assigned, but the author of the work for purposes of copyright law remains the photographer regardless of any prior agreement between the parties. Eugene is also correct that it's hard to see what this has to do with the photographer's Free Speech rights. Regardless of who the author is for purposes of copyright law, the photographer is clearly creating the expression contained in the photographs by selecting the shots, composing and framing them, Photoshopping them, etc. On Sat, Aug 24, 2013 at 2:19 PM, Volokh, Eugene vol...@law.ucla.edu wrote: (1) A freelancer’s work can be treated as a “work for hire” only if there’s an agreement and the work falls into one of several classes: “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.” 17 USC 101. A press release would not be a work for hire, for instance. (2) A photographer’s work would generally not qualify for being a work for hire, either. (3) Of course, even if a work isn’t a work for hire, the copyright can be assigned by a signed writing. But I don’t see what that has to do with the compelled-creation-of-expression issue. If I go into freelance press release writing, I think I ought to be free to say to the Church of Scientology, “No, I’m not going to write a press release for you promoting your religious events, because I disapprove of your religion.” And that is true regardless of who would own the copyright in the resulting press release. My objection isn’t to being required to own a copyright. My objection is to having to write things that I think it’s wrong for me to write. Eugene From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Marci Hamilton Sent: Saturday, August 24, 2013 10:26 AM To: Law Religion issues for Law Academics Cc: Law Religion issues for Law Academics Subject: Re: A right not to be compelled to create expression? Point of law-- Most freelancers are subject to work for hire agreements that divest copyright and make the purchaser the owner of the speech for all purposes. Marci A. Hamilton Verkuil Chair in Public Law Benjamin N. Cardozo Law School Yeshiva University @Marci_Hamilton On Aug 24, 2013, at 12:37 PM, Volokh, Eugene vol...@law.ucla.edu wrote: Well, New Mexico law covers “any establishment that provides or offers its services ... to the public, but does not include a[n] ... establishment that is by its nature and use distinctly private.” That does mean that a freelance writer who only writes on behalf of a limited set of clients, rather than offering his services to the public at large, wouldn’t be covered by this particular statute. But a freelance writer who does promote his services to the public would qualify, even if he exercises some selectivity. (Indeed, Huguenin says that there are other photography commissions she won’t take, such as for pornography, horror films, and the like, though chances are that she won’t even be approached for them in the first place. Conversely, my sense is that many freelance writers who offer to hire themselves out to the public will take the great majority of jobs that come their way, even though they too would draw the line somewhere.) So I can’t see how such freelance writers would be immune. But in any event, even if a freelance writer or photographer is unselective, I can’t see how that person’s expression isn’t “her own.” To be sure, the public might not see an unselective photographer’s/writer’s speech as equally expressing her own ideology. But the writer or photographer would still be creating the expression herself, using her own artistic and literary creative judgment. The question, then, is: Should people have a right not to be compelled to create expression they think is wrong, just as they have a right not to be compelled to distribute expression they think is wrong? It seems to me that the logic of Wooley should extend equally to both rights. If Maynard can’t be required to carry the motto “Live Free or Die” on his car, then a Maynard who is a generally will-take-most-commissions
Re: A right not to be compelled to create expression?
You may be pretty sure, but I'm absolutely certain that the photos I purchased from our wedding photographer, as well as all school and graduation photos, are owned by me and not the photographer. I purchased them, and own the rights. That's what I paid for. For the photographer to retain any rights to these photos, I would have had to sign a model waiver, which I did not. Thanks, -Z - Original Message - From: Alan Hurst alan.hu...@aya.yale.edu To: Law Religion issues for Law Academics religionlaw@lists.ucla.edu Sent: Sunday, August 25, 2013 12:33:30 PM Subject: Re: A right not to be compelled to create expression? I'm pretty sure that Eugene is correct--freelance wedding photographs are generally protected under the category of pictorial, graphic, or sculptural works, and as such are not eligible to be works for hire. (Photographs submitted to magazines or newspapers are treated differently, as they are contributions to a collective work.) Ownership of the copyright may be assigned, but the author of the work for purposes of copyright law remains the photographer regardless of any prior agreement between the parties. Eugene is also correct that it's hard to see what this has to do with the photographer's Free Speech rights. Regardless of who the author is for purposes of copyright law, the photographer is clearly creating the expression contained in the photographs by selecting the shots, composing and framing them, Photoshopping them, etc. On Sat, Aug 24, 2013 at 2:19 PM, Volokh, Eugene vol...@law.ucla.edu wrote: (1) A freelancer’s work can be treated as a “work for hire” only if there’s an agreement and the work falls into one of several classes: “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.” 17 USC 101. A press release would not be a work for hire, for instance. (2) A photographer’s work would generally not qualify for being a work for hire, either. (3) Of course, even if a work isn’t a work for hire, the copyright can be assigned by a signed writing. But I don’t see what that has to do with the compelled-creation-of-expression issue. If I go into freelance press release writing, I think I ought to be free to say to the Church of Scientology, “No, I’m not going to write a press release for you promoting your religious events, because I disapprove of your religion.” And that is true regardless of who would own the copyright in the resulting press release. My objection isn’t to being required to own a copyright. My objection is to having to write things that I think it’s wrong for me to write. Eugene From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Marci Hamilton Sent: Saturday, August 24, 2013 10:26 AM To: Law Religion issues for Law Academics Cc: Law Religion issues for Law Academics Subject: Re: A right not to be compelled to create expression? Point of law-- Most freelancers are subject to work for hire agreements that divest copyright and make the purchaser the owner of the speech for all purposes. Marci A. Hamilton Verkuil Chair in Public Law Benjamin N. Cardozo Law School Yeshiva University @Marci_Hamilton On Aug 24, 2013, at 12:37 PM, Volokh, Eugene vol...@law.ucla.edu wrote: Well, New Mexico law covers “any establishment that provides or offers its services ... to the public, but does not include a[n] ... establishment that is by its nature and use distinctly private.” That does mean that a freelance writer who only writes on behalf of a limited set of clients, rather than offering his services to the public at large, wouldn’t be covered by this particular statute. But a freelance writer who does promote his services to the public would qualify, even if he exercises some selectivity. (Indeed, Huguenin says that there are other photography commissions she won’t take, such as for pornography, horror films, and the like, though chances are that she won’t even be approached for them in the first place. Conversely, my sense is that many freelance writers who offer to hire themselves out to the public will take the great majority of jobs that come their way, even though they too would draw the line somewhere.) So I can’t see how such freelance writers would be immune. But in any event, even if a freelance writer or photographer is unselective, I can’t see how that person’s expression isn’t “her own.” To be sure, the public might not see an unselective
Re: A right not to be compelled to create expression?
We've wandered far from religion -- but that is very wrong, Z. You own the copies -- the specific photos that you purchased. And if you photographer gave you negatives (in the old days) or a CD with electronic versions you can copy or print from (semi-old days) or access to or electronic copies that you can download and distribute and copy and print (more recently) then you have whatever rights your photographer licensed to you -- which might be everything you would want to do with the pictures. But that photographer owns the copyright in the pictures. It is possible that the photographer assigned his or her rights to you, but that is rare. As a model, you would retain rights in your own image -- and the photographer would have limited rights as to what if anything the photographer could do with those photos since the photographer does not own your publicity rights in your own image. So, there are least three different rights involved -- the rights in the physical copies; the copyrights; and the publicity rights. They are not the same thing. So, what you are absolutely certain about is quite wrong. -- Prof. Steven D. Jamar vox: 202-806-8017 Director of International Programs, Institute for Intellectual Property and Social Justice http://iipsj.org Howard University School of Law fax: 202-806-8567 http://iipsj.com/SDJ/ I care not what subject is taught if only it be taught well. Thomas H. Huxley On Aug 25, 2013, at 1:25 PM, Len campquest...@comcast.net wrote: You may be pretty sure, but I'm absolutely certain that the photos I purchased from our wedding photographer, as well as all school and graduation photos, are owned by me and not the photographer. I purchased them, and own the rights. That's what I paid for. For the photographer to retain any rights to these photos, I would have had to sign a model waiver, which I did not. Thanks, -Z From: Alan Hurst alan.hu...@aya.yale.edu To: Law Religion issues for Law Academics religionlaw@lists.ucla.edu Sent: Sunday, August 25, 2013 12:33:30 PM Subject: Re: A right not to be compelled to create expression? I'm pretty sure that Eugene is correct--freelance wedding photographs are generally protected under the category of pictorial, graphic, or sculptural works, and as such are not eligible to be works for hire. (Photographs submitted to magazines or newspapers are treated differently, as they are contributions to a collective work.) Ownership of the copyright may be assigned, but the author of the work for purposes of copyright law remains the photographer regardless of any prior agreement between the parties. Eugene is also correct that it's hard to see what this has to do with the photographer's Free Speech rights. Regardless of who the author is for purposes of copyright law, the photographer is clearly creating the expression contained in the photographs by selecting the shots, composing and framing them, Photoshopping them, etc. On Sat, Aug 24, 2013 at 2:19 PM, Volokh, Eugene vol...@law.ucla.edu wrote: (1) A freelancer’s work can be treated as a “work for hire” only if there’s an agreement and the work falls into one of several classes: “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.” 17 USC 101. A press release would not be a work for hire, for instance. (2) A photographer’s work would generally not qualify for being a work for hire, either. (3) Of course, even if a work isn’t a work for hire, the copyright can be assigned by a signed writing. But I don’t see what that has to do with the compelled-creation-of-expression issue. If I go into freelance press release writing, I think I ought to be free to say to the Church of Scientology, “No, I’m not going to write a press release for you promoting your religious events, because I disapprove of your religion.” And that is true regardless of who would own the copyright in the resulting press release. My objection isn’t to being required to own a copyright. My objection is to having to write things that I think it’s wrong for me to write. Eugene From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Marci Hamilton Sent: Saturday, August 24, 2013 10:26 AM To: Law Religion issues for Law Academics Cc: Law Religion issues for Law Academics Subject: Re: A right not to be compelled to create expression? Point of law--
Re: A right not to be compelled to create expression?
I am absolutely certain because that is what is stated in the purchase agreement. Thanks, -Z - Original Message - From: Steven Jamar stevenja...@gmail.com To: Law Religion issues for Law Academics religionlaw@lists.ucla.edu Sent: Sunday, August 25, 2013 2:06:55 PM Subject: Re: A right not to be compelled to create expression? We've wandered far from religion -- but that is very wrong, Z. You own the copies -- the specific photos that you purchased. And if you photographer gave you negatives (in the old days) or a CD with electronic versions you can copy or print from (semi-old days) or access to or electronic copies that you can download and distribute and copy and print (more recently) then you have whatever rights your photographer licensed to you -- which might be everything you would want to do with the pictures. But that photographer owns the copyright in the pictures. It is possible that the photographer assigned his or her rights to you, but that is rare. As a model, you would retain rights in your own image -- and the photographer would have limited rights as to what if anything the photographer could do with those photos since the photographer does not own your publicity rights in your own image. So, there are least three different rights involved -- the rights in the physical copies; the copyrights; and the publicity rights. They are not the same thing. So, what you are absolutely certain about is quite wrong. -- Prof. Steven D. Jamar vox: 202-806-8017 Director of International Programs , Institute for Intellectual Property and Social Justice http://iipsj.org Howard University School of Law fax: 202-806-8567 http://iipsj.com/SDJ/ I care not what subject is taught if only it be taught well. Thomas H. Huxley On Aug 25, 2013, at 1:25 PM, Len campquest...@comcast.net wrote: You may be pretty sure, but I'm absolutely certain that the photos I purchased from our wedding photographer, as well as all school and graduation photos, are owned by me and not the photographer. I purchased them, and own the rights. That's what I paid for. For the photographer to retain any rights to these photos, I would have had to sign a model waiver, which I did not. Thanks, -Z - Original Message - From: Alan Hurst alan.hu...@aya.yale.edu To: Law Religion issues for Law Academics religionlaw@lists.ucla.edu Sent: Sunday, August 25, 2013 12:33:30 PM Subject: Re: A right not to be compelled to create expression? I'm pretty sure that Eugene is correct--freelance wedding photographs are generally protected under the category of pictorial, graphic, or sculptural works, and as such are not eligible to be works for hire. (Photographs submitted to magazines or newspapers are treated differently, as they are contributions to a collective work.) Ownership of the copyright may be assigned, but the author of the work for purposes of copyright law remains the photographer regardless of any prior agreement between the parties. Eugene is also correct that it's hard to see what this has to do with the photographer's Free Speech rights. Regardless of who the author is for purposes of copyright law, the photographer is clearly creating the expression contained in the photographs by selecting the shots, composing and framing them, Photoshopping them, etc. On Sat, Aug 24, 2013 at 2:19 PM, Volokh, Eugene vol...@law.ucla.edu wrote: (1) A freelancer’s work can be treated as a “work for hire” only if there’s an agreement and the work falls into one of several classes: “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.” 17 USC 101. A press release would not be a work for hire, for instance. (2) A photographer’s work would generally not qualify for being a work for hire, either. (3) Of course, even if a work isn’t a work for hire, the copyright can be assigned by a signed writing. But I don’t see what that has to do with the compelled-creation-of-expression issue. If I go into freelance press release writing, I think I ought to be free to say to the Church of Scientology, “No, I’m not going to write a press release for you promoting your religious events, because I disapprove of your religion.” And that is true regardless of who would own the copyright in the resulting press release. My objection isn’t to being required to own a copyright. My objection is to having to write things that I think it’s wrong for me to write. Eugene From: religionlaw-boun...@lists.ucla.edu
Re: A right not to be compelled to create expression?
Sent from Steve's iPhone On Aug 25, 2013, at 2:32 PM, Len campquest...@comcast.net wrote: I am absolutely certain because that is what is stated in the purchase agreement. Thanks, -Z From: Steven Jamar stevenja...@gmail.com To: Law Religion issues for Law Academics religionlaw@lists.ucla.edu Sent: Sunday, August 25, 2013 2:06:55 PM Subject: Re: A right not to be compelled to create expression? We've wandered far from religion -- but that is very wrong, Z. You own the copies -- the specific photos that you purchased. And if you photographer gave you negatives (in the old days) or a CD with electronic versions you can copy or print from (semi-old days) or access to or electronic copies that you can download and distribute and copy and print (more recently) then you have whatever rights your photographer licensed to you -- which might be everything you would want to do with the pictures. But that photographer owns the copyright in the pictures. It is possible that the photographer assigned his or her rights to you, but that is rare. As a model, you would retain rights in your own image -- and the photographer would have limited rights as to what if anything the photographer could do with those photos since the photographer does not own your publicity rights in your own image. So, there are least three different rights involved -- the rights in the physical copies; the copyrights; and the publicity rights. They are not the same thing. So, what you are absolutely certain about is quite wrong. -- Prof. Steven D. Jamar vox: 202-806-8017 Director of International Programs, Institute for Intellectual Property and Social Justice http://iipsj.org Howard University School of Law fax: 202-806-8567 http://iipsj.com/SDJ/ I care not what subject is taught if only it be taught well. Thomas H. Huxley On Aug 25, 2013, at 1:25 PM, Len campquest...@comcast.net wrote: You may be pretty sure, but I'm absolutely certain that the photos I purchased from our wedding photographer, as well as all school and graduation photos, are owned by me and not the photographer. I purchased them, and own the rights. That's what I paid for. For the photographer to retain any rights to these photos, I would have had to sign a model waiver, which I did not. Thanks, -Z From: Alan Hurst alan.hu...@aya.yale.edu To: Law Religion issues for Law Academics religionlaw@lists.ucla.edu Sent: Sunday, August 25, 2013 12:33:30 PM Subject: Re: A right not to be compelled to create expression? I'm pretty sure that Eugene is correct--freelance wedding photographs are generally protected under the category of pictorial, graphic, or sculptural works, and as such are not eligible to be works for hire. (Photographs submitted to magazines or newspapers are treated differently, as they are contributions to a collective work.) Ownership of the copyright may be assigned, but the author of the work for purposes of copyright law remains the photographer regardless of any prior agreement between the parties. Eugene is also correct that it's hard to see what this has to do with the photographer's Free Speech rights. Regardless of who the author is for purposes of copyright law, the photographer is clearly creating the expression contained in the photographs by selecting the shots, composing and framing them, Photoshopping them, etc. On Sat, Aug 24, 2013 at 2:19 PM, Volokh, Eugene vol...@law.ucla.edu wrote: (1) A freelancer’s work can be treated as a “work for hire” only if there’s an agreement and the work falls into one of several classes: “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.” 17 USC 101. A press release would not be a work for hire, for instance. (2) A photographer’s work would generally not qualify for being a work for hire, either. (3) Of course, even if a work isn’t a work for hire, the copyright can be assigned by a signed writing. But I don’t see what that has to do with the compelled-creation-of-expression issue. If I go into freelance press release writing, I think I ought to be free to say to the Church of Scientology, “No, I’m not going to write a press release for you promoting your religious events, because I disapprove of your religion.” And that is true regardless of who would own the copyright in the resulting press release. My objection isn’t to being required to own a copyright.
National Religious Freedom Moot Court Competition
This academic year's National Religious Freedom Moot Court Competition will be held at George Washington University Law School on February 7-8, 2014. This year's problem considers a hypothetical federal program that provides funding for houses of worship, along with other community facilities, to assist in rebuilding after a natural disaster. More information about the competition can be found here: http://religionmootcourt.org http://religionmootcourt.org/TheProblem Bob Tuttle (the faculty advisor) and I hope to see some of you, and your students, at the competition in February. Chip -- Ira C. Lupu F. Elwood Eleanor Davis Professor of Law, Emeritus George Washington University Law School 2000 H St., NW Washington, DC 20052 (202)994-7053 My SSRN papers are here: http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=181272#reg ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
Re: A right not to be compelled to create expression?
My wife tells me there are now two models. 1. Photographer retains copyright, and you buy the photos you want. 2. You pay multi-thousands of dollars up front. Then the photographer takes lots and lots of pictures and sends you the CD (or DVD), and you do what you want with them. This approach would require an assignment of copyright from the owner (the photographer) to you. Mark Scarberry Pepperdine University School of Law Sent from my Verizon Wireless 4G LTE Smartphone Original message From: Len campquest...@comcast.net Date: 08/25/2013 10:28 AM (GMT-08:00) To: Law Religion issues for Law Academics religionlaw@lists.ucla.edu Subject: Re: A right not to be compelled to create expression? You may be pretty sure, but I'm absolutely certain that the photos I purchased from our wedding photographer, as well as all school and graduation photos, are owned by me and not the photographer. I purchased them, and own the rights. That's what I paid for. For the photographer to retain any rights to these photos, I would have had to sign a model waiver, which I did not. Thanks, -Z From: Alan Hurst alan.hu...@aya.yale.edu To: Law Religion issues for Law Academics religionlaw@lists.ucla.edu Sent: Sunday, August 25, 2013 12:33:30 PM Subject: Re: A right not to be compelled to create expression? I'm pretty sure that Eugene is correct--freelance wedding photographs are generally protected under the category of pictorial, graphic, or sculptural works, and as such are not eligible to be works for hire. (Photographs submitted to magazines or newspapers are treated differently, as they are contributions to a collective work.) Ownership of the copyright may be assigned, but the author of the work for purposes of copyright law remains the photographer regardless of any prior agreement between the parties. Eugene is also correct that it's hard to see what this has to do with the photographer's Free Speech rights. Regardless of who the author is for purposes of copyright law, the photographer is clearly creating the expression contained in the photographs by selecting the shots, composing and framing them, Photoshopping them, etc. On Sat, Aug 24, 2013 at 2:19 PM, Volokh, Eugene vol...@law.ucla.edu wrote: (1) A freelancer’s work can be treated as a “work for hire” only if there’s an agreement and the work falls into one of several classes: “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.” 17 USC 101. A press release would not be a work for hire, for instance. (2) A photographer’s work would generally not qualify for being a work for hire, either. (3) Of course, even if a work isn’t a work for hire, the copyright can be assigned by a signed writing. But I don’t see what that has to do with the compelled-creation-of-expression issue. If I go into freelance press release writing, I think I ought to be free to say to the Church of Scientology, “No, I’m not going to write a press release for you promoting your religious events, because I disapprove of your religion.” And that is true regardless of who would own the copyright in the resulting press release. My objection isn’t to being required to own a copyright. My objection is to having to write things that I think it’s wrong for me to write. Eugene From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Marci Hamilton Sent: Saturday, August 24, 2013 10:26 AM To: Law Religion issues for Law Academics Cc: Law Religion issues for Law Academics Subject: Re: A right not to be compelled to create expression? Point of law-- Most freelancers are subject to work for hire agreements that divest copyright and make the purchaser the owner of the speech for all purposes. Marci A. Hamilton Verkuil Chair in Public Law Benjamin N. Cardozo Law School Yeshiva University @Marci_Hamilton On Aug 24, 2013, at 12:37 PM, Volokh, Eugene vol...@law.ucla.edu wrote: Well, New Mexico law covers “any establishment that provides or offers its services ... to the public, but does not include a[n] ... establishment that is by its nature and use distinctly private.” That does mean that a freelance writer who only writes on behalf of a limited set of clients, rather than offering his services to the public at large, wouldn’t be covered by this particular statute. But a freelance writer who does promote his services to the public would qualify, even if he exercises some
Re: A right not to be compelled to create expression?
Regardless of the models, I did not pay thousands for my photos. A few hundred for the graduation photos, and a few hundred for the wedding photos 30 years ago. It is my understanding that the studio protects all photos by way of copyright that are posted and accessed via its website services. That condition would make sense, as it protects the clients as well as itself. However, that was a service I wasn't interested in, and purchased one of their more traditional packages. How interesting that my experience was so unusual. So, in your opinion, I retain copyright to the oil-on-canvas portraits I was commissioned to do in the mid 1970's? Interesting. True, there aren't many (seven) and I was paid cash, but I was able to eat and to put gas in my place of lodging. Would I now be able to demand access to these works, photograph them and use them in a portfolio? I apologize to all, but I've had some disappointing experience with intellectual property rights. A firm I worked for many years ago demanded that I sign over rights to a RD project I had worked on for two years, in exchange for wages already paid. I had not been under such an agreement up until that time. The license to that work was then sold to a high-profile client for an amount in the low seven figures. The firm's attorney threatened me with legal action if I did not sign off and accept the token $1. I did, and was terminated three weeks later. My name remains on six of the patents, however. To me they're worth exactly the value of the paper they're printed on. I have been required to sign over intellectual property rights as a condition of hire ever since. The conditions even include any items I might design or invent on my own time that are unrelated to the company's business. Many people I've worked with have also had to sign non-compete clauses, which have kept talented (and well-paid) engineers out of work for years, effectively ending their careers. I therefore don't have a high regard for such laws. More relevant to the topic, I think it is rather sad and pathetic that the work of an artisan who mechanically produces work for hire is considered to be on par with an artist who produces creative work. This lumps in and treats as equals the neighborhood photographer with Annie Leibovitz and Ansel Adams. Producing memorabilia is not art, it is a craft. I'm sure all present know the difference, or should. I understand what the laws say and have read the commentaries with great interest. In my opinion mere competence with a camera is not art. Art, and therefore speech is something else. I'm sure no one here will mind that I don't repeat the obvious Dickensian reference. Thanks for your patience. -Z - Original Message - From: Mark Scarberry mark.scarbe...@pepperdine.edu To: religionlaw@lists.ucla.edu Sent: Sunday, August 25, 2013 6:11:09 PM Subject: Re: A right not to be compelled to create expression? My wife tells me there are now two models. 1. Photographer retains copyright, and you buy the photos you want. 2. You pay multi-thousands of dollars up front. Then the photographer takes lots and lots of pictures and sends you the CD (or DVD), and you do what you want with them. This approach would require an assignment of copyright from the owner (the photographer) to you. Mark Scarberry Pepperdine University School of Law Sent from my Verizon Wireless 4G LTE Smartphone Original message From: Len campquest...@comcast.net Date: 08/25/2013 10:28 AM (GMT-08:00) To: Law Religion issues for Law Academics religionlaw@lists.ucla.edu Subject: Re: A right not to be compelled to create expression? You may be pretty sure, but I'm absolutely certain that the photos I purchased from our wedding photographer, as well as all school and graduation photos, are owned by me and not the photographer. I purchased them, and own the rights. That's what I paid for. For the photographer to retain any rights to these photos, I would have had to sign a model waiver, which I did not. Thanks, -Z - Original Message - From: Alan Hurst alan.hu...@aya.yale.edu To: Law Religion issues for Law Academics religionlaw@lists.ucla.edu Sent: Sunday, August 25, 2013 12:33:30 PM Subject: Re: A right not to be compelled to create expression? I'm pretty sure that Eugene is correct--freelance wedding photographs are generally protected under the category of pictorial, graphic, or sculptural works, and as such are not eligible to be works for hire. (Photographs submitted to magazines or newspapers are treated differently, as they are contributions to a collective work.) Ownership of the copyright may be assigned, but the author of the work for purposes of copyright law remains the photographer regardless of any prior agreement between the parties. Eugene is also correct that it's hard to see what this has to do with the photographer's Free
From the list custodian
Folks: This list is designed for technical legal discussions about the law of government and religion, and is aimed generally at law professors who specialize in the field. Please keep list discussions focused on that, rather than on general discussions about other areas of the law (or even on nontechnical discussions about law and religion). The list custodian From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Len Sent: Sunday, August 25, 2013 4:26 PM To: Mark Scarberry; Law Religion issues for Law Academics Subject: Re: A right not to be compelled to create expression? Regardless of the models, I did not pay thousands for my photos. A few hundred for the graduation photos, and a few hundred for the wedding photos 30 years ago. It is my understanding that the studio protects all photos by way of copyright that are posted and accessed via its website services. That condition would make sense, as it protects the clients as well as itself. However, that was a service I wasn't interested in, and purchased one of their more traditional packages. How interesting that my experience was so unusual. So, in your opinion, I retain copyright to the oil-on-canvas portraits I was commissioned to do in the mid 1970's? Interesting. True, there aren't many (seven) and I was paid cash, but I was able to eat and to put gas in my place of lodging. Would I now be able to demand access to these works, photograph them and use them in a portfolio? I apologize to all, but I've had some disappointing experience with intellectual property rights. A firm I worked for many years ago demanded that I sign over rights to a RD project I had worked on for two years, in exchange for wages already paid. I had not been under such an agreement up until that time. The license to that work was then sold to a high-profile client for an amount in the low seven figures. The firm's attorney threatened me with legal action if I did not sign off and accept the token $1. I did, and was terminated three weeks later. My name remains on six of the patents, however. To me they're worth exactly the value of the paper they're printed on. I have been required to sign over intellectual property rights as a condition of hire ever since. The conditions even include any items I might design or invent on my own time that are unrelated to the company's business. Many people I've worked with have also had to sign non-compete clauses, which have kept talented (and well-paid) engineers out of work for years, effectively ending their careers. I therefore don't have a high regard for such laws. More relevant to the topic, I think it is rather sad and pathetic that the work of an artisan who mechanically produces work for hire is considered to be on par with an artist who produces creative work. This lumps in and treats as equals the neighborhood photographer with Annie Leibovitz and Ansel Adams. Producing memorabilia is not art, it is a craft. I'm sure all present know the difference, or should. I understand what the laws say and have read the commentaries with great interest. In my opinion mere competence with a camera is not art. Art, and therefore speech is something else. I'm sure no one here will mind that I don't repeat the obvious Dickensian reference. Thanks for your patience. -Z ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
