Audiovisual Works and the Work for Hire Doctrine in the Internet Age

The work for hire doctrine is a legal mechanism by which the creator of an artistic work’s employer is deemed the author of that work. While, historically, such employer ownership schemes were not recognized by courts, today the work for hire doctrine is a firmly embedded part of American copyright law. In particular, work for hire has developed into an essential tool of the audiovisual entertainment industry. As discussed in Part I.B, infra, there are a number of reasons that work for hire is a particularly useful ownership allocation scheme for audiovisual works. Modern technological developments are, however, rapidly altering the nature and form of the entertainment industry. Changes in both costs of and accessibility to production and distribution tools present greater opportunity for audiovisual artists to create and display their work. Theoretically, this increased access could lead to greater creative freedom for audiovisual artists who will no longer be bound by the studio-dominated production and distribution system. This freedom, in turn, could produce public benefits, including exposure to a wider array of artists and to the stories of individuals with diverse backgrounds currently underrepresented in the audiovisual arts. Despite these potential benefits, a number of structural and economic factors make the dissolution of the current studio-based system of audiovisual production highly unlikely in the foreseeable future. This Note will explore the possibility that altering or replacing the work for hire doctrine could significantly improve the ability of audiovisual artists to take advantage of technological developments in production and distribution. Part I will discuss the history of work for hire, the doctrine’s role in allocating ownership of audiovisual works, and the present audiovisual entertainment landscape that has resulted, in part, from application of the doctrine. Part II will first examine technological advances in audiovisual entertainment and how those advances might benefit individual artists, and then point to specific issues particular to live-action audiovisual entertainment that could prevent artists from taking full advantage of these technological opportunities. Part III will suggest modifications to the work for hire doctrine that would allow audiovisual artists to more fully exploit new technologies while still working within the studio system