April 15, 1993
                UNITED STATES COURT OF APPEALS
                    FOR THE FIRST CIRCUIT
                                 

No. 91-1415

                         JOHN FORWARD
                     Plaintiff, Appellant

                              v.

                  GEORGE THOROGOOD, et al.,
                    Defendants, Appellees.

                                    

                         ERRATA SHEET

   The opinion of  this Court  issued on January  29, 1993,  is
amended as follows:

   On page  4, footnote 1,  line 1:   delete the  comma between
"Nimmer on Copyright" and the " " sign.
                  

   On  page 5, line 3:   delete the  comma between "Nimmer" and
                                                          
the " " sign.

   On page 9,  line 5:  delete  the comma between "Nimmer"  and
                                                         
the " " sign.

January 29, 1993
                UNITED STATES COURT OF APPEALS
                    FOR THE FIRST CIRCUIT
                                         

No. 91-1415

                        JOHN FORWARD,

                     Plaintiff-Appellant,

                              v.

                  GEORGE THOROGOOD, et al.,

                    Defendants-Appellees.

                                         

         APPEAL FROM THE UNITED STATES DISTRICT COURT

              FOR THE DISTRICT OF MASSACHUSETTS

         [Hon. Joseph L. Tauro, U.S. District Judge]
                                                   

                                         

                            Before

                Cyr and Boudin, Circuit Judges,
                                              
                 and Hornby,* District Judge.
                                            

                                         

Richard J. Shea  with whom Kenneth  M. Goldberg was  on brief  for
                                               
appellant.
Gordon P. Katz with whom  Kim E. Perry and Jay M. Fialkov were  on
                                                         
brief for appellee.

                                         

                                         

* of the District of Maine, sitting by designation.

     BOUDIN, Circuit Judge.   This is an appeal from  a final
                          

judgment  determining  the  copyright  ownership  of  certain

unpublished  tape  recordings  of  the  musical  group George

Thorogood  and the  Destroyers  (the "Band").   The  district

court ruled that the Band held the copyright to the tapes and

enjoined appellant John Forward from making commercial use of

the recordings.  We affirm.

     The basic facts  can be  briefly stated.   Forward is  a

music aficionado and record collector with a special interest

in  blues and country music.  In 1975, Forward was working as

a  bus driver  when  he  first  met  Thorogood  at  a  Boston

nightclub  where  the  Band  was  performing.    Forward  was

immediately  taken  with  the  Band's  act  and  struck  up a

friendship  with Thorogood.   Thorogood  and his  fellow band

members,  a drummer  and  a guitar  player, had  been playing

together at East Coast colleges and clubs since 1973.

     Upon learning that the Band had yet to release its first

album, Forward  began a campaign  to persuade his  friends at

Rounder Records to  sign the  Band to  a recording  contract.

Rounder  Records  is  a small,  Boston-based  record  company

specializing  in blues  and  folk music.    As part  of  this

effort, Forward arranged and  paid for two recording sessions

for  the Band in  1976.  The  purpose of the  sessions was to

create  a "demo"  tape  that would  capture Rounder  Records'

interest.  At  Forward's invitation, one of the principals of

                             -2-

Rounder Records attended the Band's second recording session.

Other   than  requesting  specific   songs  to  be  recorded,

Forward's  contribution  to  the  sessions  was  limited   to

arranging and paying for them. 

     Rounder Records was impressed by  what it heard; the day

after the second session,  it arranged to sign the Band  to a

contract.   The Band agreed that Forward could keep the tapes

for  his  own  enjoyment,  and  they  have  remained  in  his

possession ever since.   In 1977, the Band's first  album was

released  under  the  Rounder  Records label.    Forward  was

singled   out   for   "special   thanks"   in   the   album's

acknowledgements.  Since then,  Thorogood and  the Destroyers

have  released a  number of  records and  gone on  to achieve

success as a blues/rock band. 

     The  dispute between  the parties  arose in  early 1988,

when Forward told  the Band that he intended to sell the 1976

tapes to a record  company for commercial release.   The Band

objected, fearing  that release of  the tapes would  harm its

reputation;  they   were,  the   district  court  found,   of

"relatively   primitive  quality"  compared   to  the  Band's

published work.  On  July 5, 1988, Forward filed  suit in the

district court,  seeking a declaratory judgment  that he held

the  common law  copyright to  the tapes.   Determination  of

copyright  ownership  is  governed   by  the  common  law  of

copyright because the tapes are unpublished and were recorded

                             -3-

in 1976, prior to the January 1, 1978, effective  date of the

Copyright  Act of 1976,  17 U.S.C.    101 et seq.1   The Band
                                                

responded with a counterclaim for declaratory and  injunctive

relief.

     In  the district  court,  Forward advanced  a number  of

theories  in support  of  his claim  to copyright  ownership.

After a five-day  bench trial, the  district court filed  its

findings of fact and conclusions of law,  ruling that Forward

did  not  hold the  copyright under  any  of the  theories he

advanced.  Forward v.  Thorogood, 758 F. Supp. 782  (D. Mass.
                                

1991).   The court  entered judgment for  the Band, declaring

Thorogood and other  Band members to be  the copyright owners

and   permanently   enjoining   Forward   from   commercially

exploiting the tapes.  Forward now appeals.

     On this appeal, Forward's first theory in support of his

claim of copyright  ownership is based  on his ownership  and

possession of the tapes.  According to  Forward, ownership of

a  copyrightable  work  carries  with  it  ownership  of  the

copyright.    Alternatively,  he  argues  that  the  evidence

mandated  a   finding  that  the  copyright   was  implicitly

                    

     1See  M. Nimmer  &amp; D.  Nimmer, 1  Nimmer on  Copyright  
                                                           
2.10[A] n.18, at 2-147  (1992) ("Nimmer").  See also  Roth v.
                                                          
Pritikin,  710  F.2d 934,  938  (2d  Cir.) (1976  Act,  which
        
preempts the common law  of copyright as of January  1, 1978,
determines  the rights but not the  identity of the copyright
owners  of works created  prior to that  date), cert. denied,
                                                            
464 U.S. 961 (1983).

                             -4-

transferred to  him along with  the demo tapes.   We  find no

merit in either claim.

     The creator  of a work  is, at least  presumptively, its

author and the owner of the copyright, Community for Creative
                                                             

Non-Violence  v.  Reid,  490  U.S.  730,  737  (1989).    The
                      

performer of a musical work is the author, as it were, of the

performance.    1 Nimmer    2.10[A](2)(a),  at   2-149.   The
                        

courts, in applying  the common  law of copyright,  did in  a

number  of cases  infer  from  an  unconditional  sale  of  a

manuscript or  painting an intent to  transfer the copyright.

3  Nimmer    10.09[B],  at  10-76.1.    This doctrine,  often
         

criticized  and  subject  to various  judicial  and statutory

exclusions, id., is the  source of Forward's principal claim.
              

The difficulty  for Forward is  that even under  the doctrine

this physical  transfer merely created a  presumption and the

ultimate question was one of intent.  Id.
                                        

     In this  case, the district court  found that "[n]either

the band nor  any of its members ever  conveyed, or agreed to

convey, their copyright interest  in the  tapes  to Forward."

758 F. Supp. at 784.  Rather the Band allowed Forward to keep

the  tapes solely for his personal enjoyment.  Id.  Forward's
                                                 

disregard  of this  central finding is  premised on  a highly

artificial attempt to claim "constructive possession"  of the

tapes  from the outset and then to argue that any reservation

by the Band at the end of the sessions was an invalid attempt

                             -5-

to  reconvey or qualify his  copyright.  The  reality is that

the Band never  surrendered the copyright in the  first place

and the transfer of the tapes' ownership to Forward was not a

sharply defined  event distinct  from the reservation  of the

Band's rights.

     Forward  argues that  the  district  court's finding  is

mistaken, pointing  in particular  to a  1979 check for  $500

made  out to him from Rounder Records  on behalf of the Band.

A  notation indicates  that  the check  was  for an  "advance

option"  on  the tapes,  and  Forward argues  that  the check

constitutes  an  "unambiguous admission"  that  he owned  the

copyright.   The Band  counters that, shortly  before Forward

was given the check, another  demo tape made by the  Band had

been  sold by a  third party to  a record company.   The Band

claims that, to prevent  another such misadventure, it sought

an  option on the physical  tapes held by  Forward.  Although

Forward contests  this explanation, the  district court heard

the evidence, chose reasonably between conflicting inferences

as to the  import of the  check, and that is  the end of  the

matter.  See Anderson v. City of Bessemer City, 470 U.S. 564,
                                              

573-74 (1985); Fed. R. Civ. P. 52(a).

     Forward's  second theory of copyright ownership involves

the  "works  for hire"  doctrine.    Under this  doctrine,  a

judicially developed  notion later codified  in the Copyright

Act of 1909, 17 U.S.C.   1 et seq., an employer is deemed the
                                 

                             -6-

"author"  and  copyright  holder  of  a work  created  by  an

employee  acting within  the scope  of employment.   Although

initially  confined  to  the   traditional  employer-employee

relationship, the  doctrine  has  been  expanded  to  include

commissioned  works created by  independent contractors, with

courts treating the contractor as an employee and  creating a

presumption of copyright ownership in the commissioning party

at  whose "instance  and expense"  the work  was done.   See,
                                                             

e.g.,  Murray v.  Gelderman, 566  F.2d. 1307, 1310  (5th Cir.
                           

1978);  Brattleboro  Publishing  Co.  v.  Winmill  Publishing
                                                             

Corp., 369  F.2d  565,  567-68  (2d  Cir.  1966).2    Forward
     

maintains  that  the  tapes,  created at  his  "instance  and

expense,"  are  commissioned  works  to which  he  holds  the

copyright.

     The district court rejected this claim, finding that the

evidence did not support  it.  The court said  that, although

Forward booked  and  paid for  the  studio time,  he  neither

employed  nor  commissioned  the  band  members  nor  did  he

compensate or agree to compensate them.  758 F. Supp. at 784.

While  the lack  of compensation  may  not be  decisive, see,
                                                             

e.g., Community  for Creative  Non-Violence, 490 U.S.  at 734
                                           

                    

     2    The  Copyright Act  of 1976  altered the  works for
hire  doctrine so  that  only certain  types of  commissioned
works qualify as works for hire, and then only if the parties
have  agreed in writing  to treat it as  such.  See Community
                                                             
for Creative  Non-Violence,  490  U.S.  at 738.    The  Act's
                          
provisions on works for hire operate prospectively and do not
govern this case.

                             -7-

(donated commissioned  work), the  evidence as a  whole amply

supports the trial judge's conclusion.  Nothing suggests that

the tapes were prepared  for the use and benefit  of Forward.

Rather, the purpose  was to  provide demo tapes  to entice  a

recording company.  Forward was a fan and friend who fostered

this effort,  not the  Archbishop of  Saltzburg commissioning

works by Mozart.

     Finally, Forward argues that he  is at least a  co-owner

of  the copyright as a "joint author" of the tape recordings.

The doctrine  of joint authorship, recognized  at common law,

is incorporated in  the current  Copyright Act of  1976.   17

U.S.C.    201(a).  In  appraising this claim,  our concern is

with Forward's  musical or artistic contribution  rather than

his encouragement to the Band or his logistical support.  

     The district  court found that "Forward  made no musical

or  artistic  contribution"  to  the  tapes, explaining  that

Forward  did not  serve as  the engineer  at the  sessions or

direct the manner  in which  the songs were  played or  sung.

758 F. Supp. at 784.  The trial judge noted  that Forward did

request that  certain  songs be  played  but "the  band  then

played  those songs  in  precisely the  same  manner that  it

always played them."   Id.  The district court's  concise and
                         

unqualified findings are fully supported by the evidence

     Forward  has only one legal prop  for his contrary claim

and it is a weak one.   In the House Report on the  Copyright

                             -8-

Act of 1976,  the committee  observed that  the copyright  in

sound  recordings "will usually,  though not  always, involve

`authorship' both  . . .  [by the  artist and by]  the record

producer  responsible for  setting up the  recording session,

capturing  and  electronically  processing  the  sounds,  and

compiling  and   editing  them   to  make  the   final  sound

recording."  H.  Rep. No.  94-1476, 94th Cong.,  2d Sess.  56

(1976).  It is apparent from this passage that the "producer"

envisaged by the committee is one who engages in artistically

supervising  and editing  the  production.   See generally  1
                                                          

Nimmer   2.10[A](2)(b), at  2-150 to 2-151.  That  is exactly
      

what Forward did not do in this case.  

     The Band has sought an award of attorney's fees expended

in this  court, arguing  that Forward's appeal  is frivolous.

We think that  the appeal comes  very close to  the line  but

does not quite step over it and therefore deny the motion.

     Affirmed.  
             

                             -9-
