dissenting:
I cannot agree with the majority’s conclusion that the copyrights in this case are owned by the publisher of the newspaper whose staff prepared the ads. For this reason, I respectfully dissent.
Neither the language of the amended statute nor its legislative history convinces me that Congress intended to change the employer-employee relationship for copyright purposes or to construe it so narrowly as to mandate the result reached by the majority in this case. In my view, the district court in Canfield v. The Ponchatoula Times, C/A No. 83-3000 (E.D.La. June 6, 1984), aff'd on other grounds, 759 F.2d 493 (5th Cir.1985), correctly decided this issue, when it held that under the 1976 Copyright Act, as under the previous statute, the advertiser — not the newspaper — is the copyright owner of an ad commissioned by the advertiser but designed, prepared, and printed by the newspaper.
As the district court in Canfield noted, the arrangement between an advertiser *415and a newspaper which creates and runs the ad is not a traditional employer-employee relationship. Nevertheless, the ads in this case, as in Canfield, were created at the insistence and expense of the advertisers, who retained the right to control and supervise both the nature and content of the ads. In fact, one of the advertisers in the instant case, the co-owner of a car dealership, originated a slogan used in his ad. Regardless of whether the advertiser’s control is ever exercised, however, the only rational conclusion is that Congress under the 1976 Act intended for the ad produced by the newspaper to be a work made for hire. See Aldon Accessories Ltd. v. Spiegel, Inc., 738 F.2d 548 (2d Cir.), cert. denied, 469 U.S. 982, 105 S.Ct. 387, 83 L.Ed.2d 321 (1984); Peregrine v. Lauren Corp., 601 F.Supp. 828 (D.Colo.1985).
This conclusion is fully supported by the language of Section 201(b) of the 1976 Copyright Act and its legislative history. 17 U.S.C. § 201(b) provides that:
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.
Comments contained in the House Report accompanying this section confirm that:
Section 201(b) of the bill adopts one of the basic principles of the present law: that in the case of works made for hire the employer is considered the author of the work, and is regarded as the initial owner of copyright unless there has been an agreement otherwise. The subsection also requires that any agreement under which the employee is to own rights be in writing and signed by the parties.
H.R.Rep. No. 1476, 94th Cong., 2d Sess. 121 (1976), reprinted in 1976 U.S.Code Cong. & Ad.News 5659, 5736. The House Report further demonstrates Congress’ rejection of certain amendments to the work-made-for-hire doctrine proposed by motion picture screenwriters and composers:
Their proposal was for the recognition of something similar to the ‘shop right’ doctrine of patent law: with some exceptions, the employer would acquire the right to use the employee’s work to the extent needed for purposes of his regular business, but the employee would retain all other rights as long as he or she refrained from the authorizing of competing uses. However, while this change might theoretically improve the bargaining position of screenwriters and others as a group, the practical benefits that individual authors would receive are highly conjectural. The pesumption [sic] that initial ownership rights vest in the employer for hire is well established in American copyright law, and to exchange that for the uncertainties of the shop right doctrine would not only be of dubious value to employers and employees alike, but might also reopen a number of other issues.
Id. at 5737.
Despite the majority’s conclusion to the contrary, its holding in favor of the Beacon does produce an absurd result, whereby the advertisers become infringers of the party they hired to produce their ads. Surely, this result was not what Congress intended when it passed the 1976 amendments, as demonstrated by its specific rejection of the shop right doctrine.
For the foregoing reasons, I would reverse the judgment of the district court.