Copyright

Who Owns the Statue? CCNV v. Reid and the Birth of the Agency Test

The Supreme Court's unanimous 1989 ruling rejected control-based shortcuts and held that common-law agency principles decide whether a creator is an employee or an independent contractor for work-made-for-hire purposes.

February 17, 2025
A sculptor's hands shaping a clay figure in a studio
CCNV v. Reid asked who authored a sculpture commissioned by a charity but built in the sculptor's own studio — and answered with a twelve-factor agency test. Shutterstock
Educational content, not legal advice. This article explains general legal concepts. It does not create an attorney–client relationship. For your specific situation, consult a licensed attorney.

In Community for Creative Non-Violence v. Reid, No. 88-293 (U.S. June 5, 1989), the Supreme Court of the United States resolved a question that had splintered the lower courts for a decade: when a person hires another to create a copyrightable work, what makes the creator an “employee” — so that the hiring party owns the copyright as a work made for hire — rather than an independent contractor who keeps it? Writing for a unanimous Court, Justice Thurgood Marshall held that Congress used the word “employee” in its settled common-law agency sense, and laid out a multi-factor test that has governed authorship-ownership disputes ever since. The decision affirmed the District of Columbia Circuit and remanded the case, leaving the parties to a joint-authorship inquiry on the facts.

At a glance

  • Case: Community for Creative Non-Violence v. Reid, No. 88-293 (U.S. June 5, 1989), aff’g the U.S. Court of Appeals for the District of Columbia Circuit.
  • Issue: Whether a sculpture commissioned by a nonprofit and executed by an outside artist was “prepared by an employee within the scope of his or her employment,” making it a work made for hire owned by the commissioning party.
  • Holding: The term “employee” in the Copyright Act incorporates the general common law of agency. Applying that law, the sculptor was an independent contractor, so the sculpture was not a work made for hire and the artist was at least a co-owner.
  • Why it matters: Reid supplied the single nationwide standard for the employee/contractor line that decides initial copyright ownership across film, software, photography, design, and music.
  • Left open: Whether the parties were joint authors of the sculpture — remanded for determination.

The dispute and the four competing tests

The Community for Creative Non-Violence (CCNV), a Washington advocacy organization, conceived a dramatic sculpture for a 1985 Christmas display: a modern Nativity in which a homeless family huddles over a steam grate, titled Third World America. CCNV approached sculptor James Earl Reid, who agreed to create the figures. The organization paid Reid’s materials costs and contributed the steam-grate pedestal; Reid donated his labor. He worked in his own Baltimore studio, on his own schedule, using his own tools and his own assistants, over roughly two months, while CCNV members visited periodically to check progress and offer suggestions about the figures’ poses and appearance.

When the display ended, both sides wanted the sculpture — CCNV to take it on a fundraising tour, Reid to repair and exhibit it himself — and both claimed the copyright. Neither had signed an agreement assigning rights or designating the work as one made for hire.

The case reached the Court amid open conflict among the circuits, which had generated at least four different readings of the statutory phrase “prepared by an employee within the scope of his or her employment.” Some courts asked only whether the hiring party retained the right to control the product. Others asked whether the hiring party actually wielded control over the work. A third camp read “employee” through formal agency law. A fourth limited the term to formal, salaried employees. The stakes were not academic: the chosen test determines who owns a copyright the instant a work is fixed, and therefore who can license, sell, sue over, and eventually terminate grants in it.

The Court’s reasoning: words carry their common-law meaning

Justice Marshall began with the statutory text. The Copyright Act of 1976 defines a “work made for hire” in two mutually exclusive ways. The first prong covers “a work prepared by an employee within the scope of his or her employment.” The second covers nine enumerated categories of specially ordered or commissioned works — such as contributions to a collective work, parts of a motion picture, or instructional texts — but only when the parties expressly agree in a signed writing. Because a freestanding sculpture fits none of the nine commissioned-work categories, CCNV could prevail only under the first prong, which turned entirely on whether Reid was an “employee.”

The statute does not define “employee.” The Court invoked a settled interpretive principle: when Congress uses a term that has accumulated meaning in the common law, courts presume it intended that established meaning unless the statute dictates otherwise. “Employee” and “scope of employment” are terms of art from the law of agency. The Court therefore rejected both the right-to-control and actual-control tests as atextual judicial inventions, and rejected the narrow formal-salaried-employee reading as too cramped. Congress, the Court reasoned, drew the line where agency law draws it.

The Court also looked to the statute’s structure and purpose. Reading “employee” expansively to capture anyone subject to a hiring party’s control would have swallowed the carefully limited second prong, which Congress confined to nine categories and conditioned on a signed writing. A control-based test would have let commissioning parties claim authorship of works far outside those categories without the writing Congress required — defeating the predictability the dual definition was meant to ensure.

The twelve factors and the result

Drawing on the Restatement (Second) of Agency, the Court catalogued the considerations relevant to whether a hired party is an employee or an independent contractor. The non-exhaustive list includes: the hiring party’s right to control the manner and means by which the work is accomplished; the skill required; the source of the instrumentalities and tools; the location of the work; the duration of the relationship; whether the hiring party can assign additional projects; the hired party’s discretion over working hours; the method of payment; the hired party’s role in hiring and paying assistants; whether the work is part of the hiring party’s regular business; whether the hiring party is in business at all; the provision of employee benefits; and the tax treatment of the hired party. No single factor is decisive; courts must weigh the whole.

Applied to Reid, the factors pointed decisively toward independent-contractor status. Sculpting is a highly skilled craft. Reid supplied his own tools, worked in his own studio in another city, set his own hours, and retained his own assistants. He was engaged for a single project of finite duration, paid a sum keyed to completion rather than a salary, received no benefits, and had no taxes withheld — and creating sculpture was not CCNV’s regular line of business. That CCNV directed the concept and gave detailed suggestions did not convert Reid into an employee. The sculpture was therefore not a work made for hire, and Reid owned the copyright, at least in part.

Open questions

  • Joint authorship on remand. Because CCNV had directed the work’s content and contributed the pedestal, the Court remanded for a determination of whether the parties were joint authors of a unitary work — a question Reid itself did not answer and that later courts (notably the Ninth Circuit in Aalmuhammed v. Lee) would struggle to standardize.
  • Weighting the factors. Reid declined to rank its factors, leaving lower courts to develop their own emphases; the Second Circuit, for instance, later treated benefits, tax treatment, and the right to assign additional work as especially probative.
  • The unmentioned writing problem. Reid did not address how the agency test interacts with assignment drafting — the practical lesson that hiring parties learned the hard way.

Implications

  • For commissioning parties: Paying for and directing a work does not make you its author. Outside the nine commissioned-work categories, only an employment relationship under agency law — or a separate written assignment — secures ownership.
  • For transactional lawyers: Because work-made-for-hire status can fail, agreements with freelancers should include a present assignment of copyright as a backstop, plus a “for hire” recital where the work fits an enumerated category.
  • For freelancers and studios: Tax treatment and benefits are not mere bookkeeping; they are evidence of who authored the work. Misclassification can flip ownership.
  • For litigators: Reid converted ownership disputes into fact-intensive agency inquiries, making early documentation of the working relationship decisive.

Frequently asked questions

Did CCNV lose all rights to the sculpture? No. The Court held only that Reid was not an employee, so the work was not made for hire. It remanded to decide whether CCNV and Reid were joint authors, in which case both would co-own the copyright with the rights co-owners share.

Does a signed contract calling something “work for hire” settle the question? Not by itself. For the nine enumerated categories, a signed agreement is required and effective. For everything else, the label is irrelevant unless the creator is an employee under the agency test — which is why a separate assignment clause matters.

Is the Reid test still good law? Yes. It remains the controlling standard for distinguishing employees from independent contractors under the Copyright Act and is applied routinely across creative industries.

Authorities and sources