(dissenting) :
In this unusual case my brothers have given the definition in 17 U.S.C. § 26 that “the word ‘author’ shall include an employer in the case of works made for hire” an effect far beyond what I consider the bounds that Congress could have intended. While facts like these may be unlikely to recur, the implications of the opinion are sufficiently alarming to call for an expression of dissent.
Although the course of decision has gone past the point where an argument could be mounted on the failure of the definition to say that the word “author” shall not include the true author in the case of “works made for hire,” a position the majority’s opinion necessarily entails, it is worth reflecting why the statute is phrased in the curiously back-handed way it is. The rather obvious reason is that the Constitution, Art. I, § 8, authorizes only the enactment of legislation securing “authors” the exclusive right to their writings. It would thus be quite doubtful that Congress could grant employers the exclusive right to the writings of employees regardless of the circumstances. In line with that it has been suggested that, in order to be constitutionally viable, § 26 must be limited to instances where an assignment of future copyright may fairly be implied. Nimmer, Copyright § 6.3 (1968). However that may be it is surely true that, both in the Constitution and in the Copyright Act, the emphasis is on protecting the “author” and that any principle depriving him of copyright and vesting this in another without his express assent must thus be narrowly confined.
It is often said, as in the majority opinion, that the essential factor in applying the “work for hire” doctrine is “whether the employer possessed the right to direct and to supervise the manner in which the work was being performed.” See Nimmer, Copyright § 62.2. Where the employer in fact tells the employee pretty much what to do, vesting copyright in the former is wholly consistent with the policy of the Copyright Act since the creativity can be said to be primarily the employer’s and the employee has simply carried out his instructions. In fact the decisions go beyond this and also vest copyright in the employer where he has no intention of controlling the detailed activity of the employee but the latter has been employed for the very purpose of producing copy- ' rightable material. The paradigm instance is the man hired by a music publisher to write songs. To hold that the writer has the copyright would make the contract of employment senseless. A somewhat closer case (on which there is some division of authority, see Nimmer, Copyright § 63) concerns the independent contractor commissioned to create a work of art. Even here, while there may not have been an understanding by both parties at the time of contracting that the purchaser should be free to publish or authorize copying of the work, it is not unreasonable to assume in the absence of contrary proof that the parties expected the purchaser to wind up owning the work lock, stock, and copyright and that the artist set his price accordingly. To allow the artist to retain the copyright would thus deprive the purchaser of his bargain and give the artist a windfall. Both these situations, therefore, can be squared with the policy of the Constitution and the Copyright Act on the basis of carrying out what the parties contemplated at the time of contracting, or at least what they probably would have contemplated if they had thought about it.
The majority concedes “it is somewhat of a strain” to assimilate to such cases that of two men who were drafted into the Army or enlisted to avoid the draft and received nothing more than meager military pay. At the time the “employment” relation began, no one had any thought of the production of copyrightable works. And I find no sufficient basis for inferring an intention to vest copyright in the Government from the circumstances under which the plaintiffs *503translated the model they had already created into a life-size statue. Such an assignment, to a task that would have commanded a high price if performed by a civilian, bears no resemblance to plaintiffs’ previous assignment in preparing visual training aids. While the lack of basis for the required inference would be clearer if plaintiffs were world-famous sculptors, I do not find the difference significant.
In fact the Government’s position does not really rest on an inference of probable intent but rather on the supposed unfairness of according copyright to the plaintiffs for a statue allegedly representing the expenditure of $12,367.90 of government funds. Even assuming arguendo that such a consideration would suffice to trigger the “work-for-hire” principle, the unfairness is not obvious to me. The Government wanted a statue to display at Fort Dix and got it; there is nothing to suggest it ever thought about publishing copies of the work, with consequent need for owning the copyright. Moreover, the figures are decidedly suspect. They include considerable amounts for the construction of the base of the statue and for moving it to various sites that were considered suitable, and salaries (including an estimate for off-duty hours) of military personnel who would have been paid anyway. On the other hand they do not reflect plaintiffs’ claim to have spent some 1,950 hours of valuable leisure time on the statue. If relative financial contributions are the basis for the majority’s vesting copyright in the Government, the case, at the very least, is thus inappropriate for summary judgment.
Turning to the two other grounds relied on by the defendants for their motions, I agree with the district court, 297 F.Supp. at 110-111, that the statue was not a publication of the United States Government so that plaintiffs would be deprived of copyright by 17 U.S.C. § 8. But I disagree with its ruling, 297 F.Supp. at 111-112, based upon the inadequacy of the copyright notice. Such notice is required only when a person seeks to “secure copyright for his work by publication thereof with the notice of copyright required by this title,” 17 U.S.C. § 10. As opposed to this, 17 U.S.C. § 12 provides an alternate procedure for obtaining copyright “of the works of an author, of which copies are not reproduced for sale.” Under this section if the article sought to be copyrighted is a work of art, all that needs to be done at the outset to secure copyright is to supply a photograph, which Scherr and Goodman did. The deposit of copies is required only “where the work is later reproduced in copies for sale,” and it is the copies that must bear the copyright notice. Hence, so long as Scherr and Goodman did not “publish” the statue or authorize the publication of copies of it, they were under no obligation to affix the notice at all. Such a position is essential if artists are to be spared the dilemma of either defacing the work of art with a plainly visible notice or losing copyright protection. In light of that policy I would also hold that the display of the statue was not a publication, see Nimmer, Copyright § 54, although a court presumably would exercise its discretion, 17 U.S.C. § 101, not to grant relief against persons whose infringement lay only in photographing the statue for their own pleasure, see 297 F.Supp. at 112, if, as is hardly likely, the plaintiffs should ever seek this.
While I would therefore reverse the judgment for the defendants, it does not follow that one should be entered for the plaintiffs — which indeed, they have not sought. When interviewed by a lieutenant colonel for the Judge Advocate General’s office shortly after the unveiling of the statue, Scherr stated that he had no copyright. This might create an estoppel, at least as regards liability for damage as distinguished from an injunction against future infringement.
I would reverse and remand for further development of the facts.