Intellectual Property Law

Chapter 12 Case Study Answers

Case Study: Fit Forever hired a well-known freelancer to shoot a video for it to
demonstrate the services offered at its fitness studios. The parties had no written
agreement, and Fit Forever gave no specific directions to the freelancer. Fit Forever also
asked one of its employees, Jill, who had been a fitness instructor with Fit Forever for
two years, to prepare a small booklet describing the company’s services and classes for
prospective clients.

Activities: What are the various parties’ rights in the video and the booklet? Discuss
ownership rights and the duration of the copyrights for these works.

It is likely that the freelancer owns the copyright in the video. Although the
video was commissioned by Fit Forever and although it is one of the nine
statutorily enumerated categories included in the definition of a “work made
for hire” (in that it is an audio visual work), the parties had no written
agreement. Without a written agreement, the work cannot be a work made
for hire. If the work is not a work made for hire, the independent contractor
will retain all rights to the work, and the copyright will expire 70 years after
his death. It is possible that the freelancer could be an employee, but such
seems unlikely in this case, particularly when it is stated that Fit Forever
exercised no real control over the video. Because the freelancer thus had
significant discretion in determining how the video would be shot, the
freelancer is far more likely to be considered an independent contractor than
an employee.

The booklet is likely owned by Fit Forever as the employer. The work is one
made for hire by an employee within the scope of employment. Fit Forever
directed the employee to prepare the booklet, and although the employee
may have had some discretion, the facts state that the author, Jill, had been
employed with the company for two years. Thus, Fit Forever, as the
employer, is the “author” of the work under the work made for hire
doctrine. The copyright will expire 95 years from publication of the work of
120 years from its creation, whichever is first.