Playboy wins rights to art works commissioned by magazine

07/03/95

NEW YORK–A freelance artist who published more than 270 pieces of art in Playboy from 1974 to 1984 did not hold the copyright in some of his works, a unanimous panel of the U.S. Court of Appeals in New York City (2nd Cir.) ruled in early May. Some of Patrick Nagel’s paintings were found to be done as works for hire, giving Playboy copyright ownership in those works.

The confusion arose because of the changing nature of the relationship between the artist and the magazine, and the new rules for determining what constituted a “work made for hire” after passage of the Copyright Act of 1976.

Interpreting the “work for hire” doctrine of the Copyright Act of 1909, which affected works created before January 1, 1978, the court found that copyrights to works created at Playboy’s request prior to January 1977 belonged to Playboy.

The court held that as long as the magazine was the “motivating factor” in the creation of the paintings and there was no agreement to the contrary, Nagel’s relationship to the magazine was considered “work for hire.” But a trial court must determine whether paintings made in 1977, produced before the effective date of the 1976 copyright law, belonged to the magazine or the artist, the appellate court said.

Jennifer Dumas, Nagel’s widow, was awarded the copyright in paintings Nagel made in 1978 and much of 1979 because the check endorsements signed did not constitute a written agreement sufficient to establish the work for hire relationship. But the court also ruled that Dumas’ check endorsements for works purchased after September 1979 were sufficient writings under the Copyright Act of 1976 to convey copyrights to the magazine.

The appeals court sent the case back to the trial level to apply the “motivating factor” test to the post-September 1979 paintings, and to determine if Dumas was authorized to enter into a work for hire agreement on Nagel’s behalf after September 1979.

In September 1991, Playboy brought suit in federal district court in New York City seeking a declaratory judgment that it was sole owner of copyrights to the Nagel paintings that appeared in the magazine. The trial court had awarded all copyrights to Dumas. (Playboy Enterprises v. Dumas; Artist’s Counsel: Roger Zissu/Laurence Rickels; Publisher’s Counsel: Kenneth P. Norwick/Donald B. Verrilli, Jr.)

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