Whether a party that commissions a work from an independent contractor qualifies as the creator's 'employer' within the meaning of the Copyright Act of 1909's work-for-hire provision

QUESTION PRESENTED Federal law generally bestows upon authors and other creators a copyright in the work they produce. One critical exception under both the Copyright Act of 1909 (“1909 Act”), Pub. L. No. 60-349, 35 Stat. 1075, and the current Copyright Act of 1976 (“1976 Act”), Pub. L. No. 94-553, 90 Stat. 2541, is provided by the “works made for hire” doctrine. Historically, the workfor-hire doctrine applied only to works created in the course of a common law _ employer-employee relationship. The 1909 Act thus provided that copyrights in works for hire belong to the creator’s “employer.” 35 Stat. at 1087-88. In the 1960s, however, the Second and Ninth Circuits—the principal fora for US. copyright litigation—created an entirely new class of works covered by the work-for-hire doctrine, namely works produced by independent contractors at the “instance and expense” of a commissioning party. Other circuits later adopted the same rule and applied it to cases under both the 1909 and 1976 Acts. In Community for Creative Non-Violence v. Reid, 490 U.S. 730 (1989), this Court unanimously rejected the expansion of the work-for-hire doctrine to independent contractors as untethered to text and history. But because that case arose under the 1976 Act, the Court did not address whether the test could nonetheless continue to be applied under 1909 Act. That question controls ownership of copyrights in countless works created before the 1976 Act, copyrights that will endure for decades yet to come. The question presented is: Whether a party that commissions a work from an independent contractor qualifies as the creator’s “employer” within the meaning of the Copyright Act of 1909’s work-for-hire provision.