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Marco v. Accent Publishing Co.

argued: June 10, 1992.

ED MARCO, D/B/A/ ED MARCO PHOTOGRAPHY
v.
ACCENT PUBLISHING CO., INC.; SONIA GILBERT; LEIF KLEIN; LAPIDARY JOURNAL, INC.; ED MARCO; GERRY J. ELMAN; FREDERIC M. WILF; ELMAN & WILF, P.C., DEFENDANTS ON COUNTERCLAIM, ED MARCO, D/B/A ED MARCO PHOTOGRAPHER APPELLANT



Appeal from the United States District Court for the Eastern District of Pennsylvania. (D.C. Civil No. 91-02057)

Before: Mansmann, Scirica and Roth, Circuit Judges.

Author: Mansmann

Opinion OF THE COURT

MANSMANN, Circuit Judge.

We focus here on the application of agency law in the context of the "work for hire" provision of the Copyright Act of 1976. 17 U.S.C. § 101(1). We find that the district court misapplied agency principles to the facts in holding that a freelance photographer was the employee of a publisher. Because the district court premised the denial of a preliminary injunction on this erroneous Conclusion of law, we will vacate the district court's judgment and remand for further consideration.

I.

The district court has exclusive subject matter jurisdiction of this action arising under the Copyright Act. 28 U.S.C. § 1338(a). We have appellate jurisdiction to review the district court's refusal to grant a preliminary injunction. 28 U.S.C. § 1292(a)(1).

We review the denial of injunctive relief for abuse of discretion, which occurs if the district court's decision rests on a clearly erroneous finding of fact, an error of law, or a misapplication of law to the facts. See Apple Computer, Inc. v. Franklin Computer Corp., 714 F.2d 1240, 1242 (3d Cir. 1983), cert. dismissed, 464 U.S. 1033 (1984). In determining whether an underlying error exists, we exercise plenary review of the district court's application of the law of agency to the facts. See, e.g., Levendos v. Stern Entertainment, Inc., 909 F.2d 747, 748 (3d Cir. 1990); United States v. Adams, 759 F.2d 1099, 1106 (3d Cir.), cert. denied, 474 U.S. 971, 88 L. Ed. 2d 321, 106 S. Ct. 336 (1985).

II.

Most of the salient facts are not in dispute. In recounting them, we adopt the findings of the district court so long as they are not clearly erroneous. See, e.g., Mellon Bank PSFS, N.A. v. Farino, 960 F.2d 1217, 1220 (3d Cir. 1992); Leeper v. United States, 756 F.2d 300, 308 (3d Cir. 1985).

In 1990, the appellant, Ed Marco, photographed jewelry for Accent Magazine, a monthly trade journal for the costume jewelry industry. Accent Publishing Co., Inc. had engaged Marco on the basis of his portfolio, without a written contract and without negotiation concerning copyright or licensing.*fn1 Accent supplied the jewelry and the props, sketched the shots, and retained the right to have Marco reshoot unsatisfactory photographs. Accent did not name Marco on the magazine's masthead.

Marco, who has ten years' experience and who earned a Bachelor of Fine Arts degree in photography at the Philadelphia College of Art, made images for about six consecutive issues of the magazine and then for one or two later issues. He thus worked during every month except one over the course of his business with Accent.

Marco shot the pictures in his own studio on his own time, subject to Accent's deadlines. For the most part, he worked on still-lifes, without anyone from Accent present. On a few occasions, however, Accent provided live models; Accent's Art Director, Kevin Myers, would pose the models.

The exact scope of Myers' control at the live sessions remains in dispute. Marco challenges as clearly erroneous the district court's finding that Myers "directed, supervised, and provided artistic contribution to the photographic work." Testimony supports this finding. Myers generally concerned himself with the way models and jewelry looked in the photographs. See, e.g., Myers test., R. at 545, 575. Myers also would instruct Marco, in very general terms, to use more light. See id. Myers candidly admitted, however, that he did not become involved in the technical aspects of the photographs. For example, Myers described matters such as color balance and light meter readings to be beyond his ken and to be within the purview of a professional photographer. Myers test., R. at 561.

Marco did not receive an hourly wage or periodic salary. The district court's finding, that "Marco was paid at the rate of approximately $150 per photograph used in advertisements, and $450 per month for all photographs used in connection with articles," must be read as shorthand for the facts that Marco received about $450 per issue, that issues appeared monthly, and that Marco invoiced about one job each month. ...


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