Work for Hire

by Margo Karasek

  UNDER SECTION 101 OF THE 1976 COPYRIGHT ACT a “work made for hire” is one “prepared by the employee within the scope of his or her employment.” Therefore, although normally copyright ownership automatically attaches to a work’s creator or author, a third party’s rights may trump those of the creator or author when the two form an employer-employee relationship. However, who that employee is and what the scope of that employment relationship entails has been narrowly interpreted by courts in the years since the Act’s enactment. For instance, numerous courts have held that academic writing in universities and colleges was not work made for hire, and professors retained the copyrights to their work even if they used their employer’s “paper, copier, secretarial staff, and computer facilities” in the creation of said work. Weinstein v. University of Illinois; Hays v. Sony Corp. of Am. The courts have yet to consider whether teachers at the elementary level retain the same rights, but the judicial trend has clearly been to recognize an overall “teacher exception.” Consequently, Elementary School 1 has no copyright claim to Miss Smith’s book, even if the Court interpreted all the disputed facts in its favor, which it should by no means do …

  “Tekla, are you busy? I brought you some food.”

  My mother strolled into my old bedroom, a plate overflowing with sandwiches in her hands. She stormed my desk, shoved papers out of the way and flipped open books closed, to make room for her bounty.

  I flinched. It would take a good fifteen minutes to reorganize the pages again. No point mentioning that to my mother, for whom more than one opened textbook at a time equaled a mess that needed immediate cleanup.

  “Moooom. We just ate dinner, like an hour ago. I am not hungry.”

  My mother tsked. “And that’s why you’re so skinny! With your condition, you need to eat a lot, and often.”

  I rolled my eyes. I had no condition, but my mother knew better. She had long ago diagnosed me with an overactive thyroid brought on by stress and nerves. Never mind what the doctors said.

  “And you look so anxious,” she said, looking ready to stroke my head.

  I was—I was anxious to finish. Now if she would just go away …

  My father must have sensed my thoughts, because, miraculously, he materialized behind my mother’s back.

  “Zlotko,” he said as he caressed my mother’s shoulders. “Leave Tekla alone. She has to do her work.”

  ELEMENTARY SCHOOL 1 ARGUES THAT, under Section 101, it holds the copyright to Miss Smith’s book, and therefore has a right to all its proceeds, because Miss Smith was employed by the school at the time of the book’s writing and undertook the project solely for the purpose of teaching, her enumerated contractual responsibility with the school. (Plaintiff’s Complaint at 2). However, the actual facts of the case belie that assertion. Elementary School 1 employs numerous other third-grade teachers, none of whom have penned any children’s stories as part of their teaching responsibilities. All rely on the school’s library for their classroom reading material and not their own creative endeavors. Elementary School 1 further asserts that it rightfully holds the copyright ownership in Miss Smith’s book because Miss Smith did a significant portion of the work on the book while on school grounds, during school hours, using the school’s supplies and even relying on its students for critical feedback. Id. Again, the actual circumstances undermine this legal and factual assertion. Miss Smith completed only a portion of her book while on school grounds, and usually during her breaks when she could undertake any activity she desired. She was under no contractual obligation to perform school-related responsibilities during her free periods. Moreover, while Miss Smith admittedly did engage her students in the creation of the book, that engagement was minimal at best. Students got the benefit of hearing her read her story, but this occupied no real classroom time and students never participated in the actual writing process. Finally, as numerous courts have held, whether or not Miss Smith used any of the school’s supplies is not dispositive of the case …

  “Tekla … sorry,” my father apologized as he tiptoed into the room. “But your cell phone is ringing, non-stop. I thought it might be important.” He handed me the phone and crept back out.

  I glanced at the display screen.

  Xander. Great.

  “Yo Tekla,” Xander’s voice whined into my ear. “How come you’re ignoring my e-mails? Dude, like, the story is due on Monday.”

  “I know,” I replied as I closed my computer screen. Something told me this would be a long break. “But I told you, I won’t make any corrections if you keep writing that nasty stuff about Gemma.”

  “Yo, that was a total joke,” Xander’s voice went up an octave. “I was just doing it to piss her off. And, like, it was funny. But, yo, I would never really submit that stuff. Mr. Dandridge would fail me. So can you please look at it? Please. I swear I took all the Gemma crap out.”

  I stared at the computer then at my wristwatch. It was Saturday evening. I was halfway done with the brief. I had all of Sunday to finish, and I couldn’t avoid Xander’s story anyway.

  “Okay,” I said. I’d check it as soon as my own brief was in the bag, so to speak.

  “But can you like check it now? We’re going with Maman to the country tomorrow, to her editor friend’s house, and, like, you know, I want to be done.”

  “Fine,” I sighed. Didn’t we all? Want to be done, that is. But not all of us were so lucky. “Send it over.”

  ONCE UPON A TIME there were two beagle puppies that lived in a huge doghouse in Manhattan. One puppy was a boy and his name was Der. The second puppy was a girl and her name was Gem. The two puppies had very rich dog parents. Their father, his name was Dior, made dog biscuits and he had lots of dog money. Their mother, her name was Coco, was a big dog model who did commercials for the dog biscuits and she was very well known by dogs all over the world. The puppies really loved their dog parents because they gave them everything they wanted. They had nice collars and nice leashes and really good dog food to eat all the time. They didn’t have to worry about anything, like all those poor dogs living in dog shelters or sometimes even on the street had to. They didn’t have to worry about being put to sleep because no one wanted them, or about being beat up by mean people. But the puppy dogs were still sad because their parents were away a lot and they had to stay in the doghouse alone. This did not make them happy. So the puppy dogs started doing bad things to get attention. Like once they had this huge dog party …

  I smiled. Go, Xander! Good for you. Better grammar. Check. Periods. Here. Consistent tenses. Check again. Plot and character development. Present.

  Would the story get him into Horizons? Maybe not. But it was the first piece of writing Xander had ever completed on his own.

  And that had to count for something.

  “HELLO?”

  “What the hell is this?” a man’s voice screamed at me.

  I had made the mistake of picking up my cell phone, again, although I should’ve known better. But the number was unfamiliar and, well, here I was.

  “Mr. Lamont?”

  “‘They had nice collars and nice leashes and really good dog food to eat all the time.’ What kind of crap are you peddling, Miss Reznar? This is elementary school stuff! Sentences like that will never get Xander into Horizons.”

  “Ye-yes, w-w-well,” I stammered, trying to get my bearings. Clearly, Mr. Lamont had gotten hold of Xander’s finished story and didn’t like it. “Xander is in ninth grade. That’s barely high school. And I thought, for his level, with his writing issues, the story was quite good. You’ll be happy to know,” I said, trying to point out the positives, “that Xander wrote it all on his own, and the work is a huge improvement on what he’s done before. With more practice he can become quite the writer.”

  The line went dead quiet, then …

  “Are you mocking me, Miss Reznar?” Stephen Lamont hissed.

  “Ah, no.” Uh-oh. “It’s just that … ” I began, only to be interrupted mid-sentence.


  “Good,” Stephen Lamont’s voice stayed level. “Let me remind you that I hired you to produce results and not to wait until Xander becomes ‘quite the writer’ all on his own. As such, you have two hours to give me something usable, Miss Reznar. Otherwise, you are fired. Terminated. Your services will no longer be needed. Am I making myself clear?”

  Before I could answer, the connection went dead. Stephen Lamont, I fumed, had hung up on me. The jerk. The bastard.

  And two hours only! He demanded a whole new story—I looked at my watch to confirm the hour—at ten o’clock on a Saturday night. The man was crazy. Inconsiderate. Not to mention unethical. I was a tutor, not a paper peddler. There were academic rules against paying someone to outright do the schoolwork for you, or your son.

  But then I felt the color drain from my face.

  Fired.

  The word echoed in my head. Stephen Lamont hadn’t sounded like he was kidding.

  I had never been fired in my life. And the money … I saw the $6,000 paycheck, and all it could purchase, floating away. My childhood bedroom—with its comforting peach walls, frilly bedding and movie star posters—closed in on me. Without the money, it’d become my daily reality. I could, I took a deep breath, deal with that.

  Yeah, right. No I couldn’t.

  So I searched through my cell’s contact list, for the only person who could help me. She just had to.

  Ms. Jacobs.

  “Tekla, I was just thinking about you,” she rasped into my ear. “And here you are calling. How are you? How’s everything going?”

  “Not too good.” I sat back in my desk chair, relieved to unload the Lamont burden. Ms. Jacobs would deal with it. After all, she had stern rules against cheating. She had said as much. “I’m sorry to be calling so late, but I just spoke with Stephen Lamont, and, well, there’s a problem.”

  “Oh, don’t worry about the time,” Ms. Jacobs chortled. “I’m always here for my tutors. Want to make sure you’re all happy, especially my brightest stars.”

  “Yes, well,” I responded, not sure about the “bright star” part. “Mr. Lamont is demanding I write Xander’s essay for him, by tonight, or else he’ll fire me.” I paused, waiting for Ms. Jacobs’s response.

  It never came.

  I had expected one full of shock. Outrage, maybe. But not silence.

  Perhaps I hadn’t sufficiently stressed the gravity of the situation, and she didn’t understand that Stephen Lamont had ordered me to break fundamental academic principles.

  “I mean,” I tried again, “Xander wrote his own story—it’s quite good, by the way—but Mr. Lamont doesn’t like it. He says I need to write something else. And you said I should call you whenever parents cross the line and expect tutors to do all the work,” I pointed out. “Well, the line has been crossed.”

  “Oh, you poor dear,” Ms. Jacobs finally commiserated. “I’m so sorry you had to deal with that. These parents can sometimes be awful, just awful. Now you know what I handle on a daily basis—these unrealistic expectations—just because the parents pay a teeny bit of money. They think they can buy everything. But you said Xander actually wrote a story of his own; is that right?”

  “Yes,” I replied carefully, not exactly sure where this was heading.

  “Good,” Ms. Jacobs said. “So, really, Xander did his own work on the assignment, and your writing something else would just be appeasing a fussy parent. Isn’t that right, dear?”

  I choked on my own spit. What? My voice caught in my throat.

  “And, really,” Ms. Jacobs chugged on, “where’s the harm in that? Xander learns, Mr. Lamont is happy and you have peace. Everybody wins. But let me do something for you, Tekla. Let me call Mr. Lamont on Monday and have a little chat with him about this incident, about him threatening to fire you. Really, you should never have to hear something like that. If a parent has issues with one of my tutors, he should call me. And, Tekla, you call me with anything else you need. I’m always here for you. You’re such a superstar. Listen, I gotta run; another phone call,” she sighed, all self-pity. “My work never ends, not even on weekends. But what can I do? I love to help people, so I answer. Say ‘hi’ to Lauren for me. Talk to you soon.”

  For the second time in less than an hour, the phone clicked off before I had a chance to utter a single objection.

  I threw it on the bed. These people were cuckoo, and I had had enough of them.

  Mr. Lamont wanted a new story. Ms. Jacobs wanted me to give him one. Fine. I’d comply with both of them. What did I care? I didn’t have time for extended ethical dilemmas. And it was just a high school paper. It’s not like I hadn’t written essays for Xander before, so what was one more? I rolled my chair back to the computer, minimized the brief and opened a new document.

  Once upon a time, the words simply poured onto the screen, in a huge dog mansion in Manhattan, there lived a dog named Dior. Dior was a beagle and he was a very powerful dog. In fact, he was the most powerful dog in all of New York. All other dogs were in awe of him and his supreme wealth. Dior took all this adoration in stride. He really liked his life; he liked having the huge doghouse and the big bank account; he liked having a beautiful wife that every other dog on the planet admired. Dior’s life was close to perfect—close but not perfect enough. You see, there was one fly in Dior’s ointment of perfect happiness: his puppy son Der. Unlike every other canine on the planet, Der refused to do what Dior wanted. So Dior solved the problem by paying others to pretend to be Der and, well, sometimes that led to trouble …

  Let’s see how Stephen Lamont liked this version.

  … THE FACTS CLEARLY SHOW that Miss Smith’s bestselling children’s book was not within the scope of her employment as a teacher at Elementary School 1. As such, the book was not a “work for hire” and the school possesses no ownership interests in Miss Smith’s creative endeavor, nor does it have any rights to its financial proceeds. But even if the Court were to decide that Miss Smith’s book fell under Section 101 of the Copyright Act, Miss Smith is entitled to relief because she has clearly established that her work falls within a “teacher exception.” For all the foregoing reasons, Defendant Amy Smith respectfully requests that the Court dismiss Plaintiff’s case.

  I reread the last sentence and wanted to jump out of my chair—no; out of my skin—to dance. I was finished. Finished! With the brief. With Xander’s story. With everything. And it was only five p.m. on Sunday. I had hours to spare until the Monday morning deadline. My feet itched to move.

  Instead, I collapsed on the bed.

  CHAPTER 22

  “HI, TEKLA, how was your weekend?”

  “Fine,” I responded, scowling at the empty space around me before I strolled over to a window to look outside, my cell phone in hand.

  It was black out, with only an occasional streetlight illuminating the rows of parked cars beneath it. Nary a soul meandered among the blocks of single-family homes.

  It was nine p.m. on Sunday and I was still in my old bedroom in my parents’ house in Brooklyn, too tired to make the trip back to my dorm and Manhattan.

  But that didn’t stop my phone from ringing. Incessantly. Apparently, I was very popular this weekend. Except I couldn’t quite believe with whom I was talking now.

  Lisa. Seemingly calling to shoot the breeze.

  How unlikely.

  “Good,” Lisa said, chuckling on the other end. “Stephen and I are in the Hamptons. We drove out this morning for a conference. Boring business stuff, but it’s nice to get out of the city once in a while, don’t you think? Out of the hustle and bustle.”

  “Sure,” I agreed, although I hadn’t been so fortunate as to get away.

  And business conference, my ass, I thought.

  “Soooo,” Lisa drawled, her voice so syrupy I actually missed the acidity of her usual banter, “are you hanging around the city tonight?”

  “So to speak,” I said. Manhattan. Brooklyn. They weren’t exactly the same, but New York was New York, no matter
the zip code.

  “Good, good,” Lisa almost giggled.

  The sound shot my eyebrows up to my hairline. Lisa was never this friendly. Actually, she was never friendly. Period.

  “And by any chance, have you seen or heard from Xander lately?”

  My frown came back.

  “Not today,” I answered, slowly. “I spoke with him yesterday, and he mentioned going to the country with Gemma and Monique, although I don’t know exactly where he meant. Why? Isn’t he with them?”

  “Oh, I’m sure he is,” Lisa chuckled again. “There’s nothing to worry about,” she reassured me. “Stephen just wanted to ask him something, and he’s not picking up his phone. Teenagers. You know how they can be. Well, I’ll let you enjoy the rest of your night. Bye.”

  Yeah. Sure. Teenagers. I closed the phone. Xander was probably just pissed at his father over the story mess. My feelings would’ve been hurt too if I had done all that work just to be told it was crap. I wouldn’t pick up Stephen Lamont’s call either.

  Still, a niggling doubt lingered in my mind. Xander wasn’t one to suffer in silence. And if Stephen Lamont couldn’t get Xander on the phone, assuming Xander was in the country, wouldn’t he just call Monique instead of having Lisa call me?

  I dialed Xander’s number. It wouldn’t hurt to check.

  After five rings, I got his voicemail.

  Fifteen minutes later, the prerecorded message clicked on again. It did the same fifteen minutes after that.

  The doubt bloomed into outright worry.

  I tried Gemma. If Xander was in the country with her and her mother and was just refusing to pick up his cell, she’d know and would put the issue to rest. And if not …

  “Hi, Tekla,” Gemma chirped into the phone.

  “Is Xander there with you?” I said quickly, cutting to the chase.

  “Noooo,” Gemma said. “Why?”

  The “no” had my stomach dropping to my knees. This was starting to feel bad. Real bad. If I had it right, no one in his family had actually seen or heard from Xander since that morning—more than twelve hours before.