Appeal from the Circuit Court of Cook County; the Hon. Eugene
R. Ward, Judge, presiding.
JUSTICE MCGLOON DELIVERED THE DECISION OF THE COURT AND THE FOLLOWING OPINION:
Rehearing denied April 4, 1984.
Plaintiff, Catherine Sykee, brought this action for an order of replevin to recover possession of photographic negatives allegedly taken at plaintiff's request at her home on November 11, 1981. (Ill. Rev. Stat. 1981, ch. 110, par. 19-101 et seq.) Defendant appeals from an order of the trial court confirming its grant of the order, contending she is the owner of the negatives by operation of law under the Copyright Law Revision Act (17 U.S.C. § 101 et seq. (1976)).
Catherine Sykee testified that she had planned a cocktail party in honor of the 89th birthday of an artist named Erte. Defendant, Ms. Georgia Lee Roulo, telephoned plaintiff at the suggestion of a mutual friend and said she was available to take pictures at the party. Plaintiff explained the nature of the party and said she would like three or four rolls of color film used with 36 pictures per roll. She agreed to defendant's fee of $150, and it was arranged that defendant would arrive one-half hour before the guests. There was no discussion with respect to photographic proofs, negatives or any additional charges above $150. Defendant took pictures at the party, which was attended by between 100 and 150 people, under the direction of plaintiff and her husband. She did not accompany defendant during the entire evening or direct her as to each photograph, but did direct that certain photographs be taken at the beginning and the end of the party and at various times in between. A few days later, plaintiff paid defendant the $150 fee, plus an additional $50 fee for proof sheets which defendant brought to plaintiff's home to show to her. Defendant offered to make enlargements for $35 to $40 each, but plaintiff thought this was too high and asked defendant for the negatives. Defendant refused, although she did offer to have enlargements made for as little as $7.50 each.
Defendant testified that plaintiff hired her to take photographs and her charge for the evening was $150. At this time, prior to the party, there was no discussion of any other charges and there was no written agreement. But she never indicated to plaintiff that the prints would be free. She told plaintiff that a mutual friend told her plaintiff was in trouble because plaintiff needed a photographer for her party. Defendant said she would be willing to help plaintiff on condition that plaintiff agree that the negatives would be defendant's property; otherwise she explained to plaintiff that she was not interested in photographing the party. Plaintiff expressed no disagreement with that proposition. The first time she told plaintiff the charge per picture would be between $35 and $40 was several days after the party. Defendant was at the party from 5:30 p.m. until approximately 9:15 p.m. and during this time she used her own judgment in taking the photographs. Although there were requests to take pictures of particular individuals, this was only a small portion of the evening's work.
Defendant first contends both parties understood that defendant owned the negatives and that plaintiff's testimony does not contradict this. Plaintiff responds that plaintiff denied any conversation with defendant that the negatives would belong to defendant. After reviewing the testimony and giving proper deference to the impressions of credibility received by the trial judge, who had the opportunity to observe the witnesses, we conclude that the evidence concerning ownership of the negatives was conflicting, and that the trial court properly accepted plaintiff's testimony that there was no such conversation. (Cf. Watson Lumber Co. v. Mouser (1975), 30 Ill. App.3d 100, 106, 333 N.E.2d 19.) The trial court's finding for plaintiff was not against the manifest weight of the evidence.
Defendant next argues she owns the negatives by operation of Federal law, since, under section 201(a) of the Copyright Law Revision Act of 1976 (17 U.S.C. § 201(a) (Supp. IV 1980)), ownership of a copyright is vested in the author of a work. Plaintiff responds that under section 201(b) the employer or other person for whom the work is prepared is considered the author for copyright purposes. (17 U.S.C. § 201(b) (Supp. IV 1980).) Thus, unless the photographs were produced as a work for hire, copyright ownership is in defendant. Childers v. High Society Magazine, Inc. (S.D.N.Y. 1983), 561 F. Supp. 1374, 1375.
In relevant part, section 201 provides:
"Sec. 201. Ownership of copyright
Copyright in a work protected under this title vests initially in the author or authors of the work. The authors of a joint work are co-owners of copyright in the work.
In the case of a work made for hire, the employer or other person for whom the work was prepared is considered the author for purposes of this title, and, unless the parties have expressly agreed otherwise in a written instrument signed by them, owns all of the rights comprised in the copyright."
The parties' views also diverge concerning whether the negatives here come within the statutory definition of a "work made for hire," set forth in section 101 (17 U.S.C. § 101 ...