Work for Hire

by Margo Karasek

  What had I been thinking? That because she was young and attractive, she couldn’t possibly have achieved success because of her intelligence? And that since Professor Johnson was a man and single, he could see only her outside attributes, and not the wisdom within?

  Oh God. My eyes burned.

  I was a shallow, pseudo-feminist who screamed “bloody murder” when someone judged my competence on looks and not brains, but inferred other women’s successes by the very standards I claimed to despise. Worse, I personally attacked those who, like Professor Johnson, had clearly evolved beyond my caveman approach.

  I was a hypocrite, a self-righteous one.

  My head dropped.

  But Professor Johnson wasn’t done.

  “You seem not to comprehend that law school is a privilege. Thousands apply. Few get in. Law Review is even more revered. It is the opportunity of a lifetime. Your classmates would kill to be in your place. Yet you treat it like nothing. What is it with people like you?” Professor Johnson’s glare zeroed in on my face, like the laser on a semi-automatic rifle. “You feel entitled to everything, but want to give little in return. You want the top grades and the academic accolades, but at no cost to you.”

  People like me?

  I momentarily bristled, all embarrassment forgotten.

  What did he mean by, “people like me?”

  I wasn’t like that. I worked hard to get where I was—clawed my way up from an immigrant neighborhood in Brooklyn. I even tolerated the Lamonts to stay there.

  People like me, my ass.

  He must’ve meant the likes of the Xanders and Gemmas, the Stephens and Moniques, and maybe even the Laurens of this world—the super rich. They paid someone else to do the work and collected the accolades, all the while complaining over the slightest inconvenience, spreading the blame and never sharing the credit.

  I was the hired help.

  Sort of like Julian.

  The very thought of his name gave me a pang—for whatever he was, whatever he did, we did have that in common.

  It couldn’t be easy for him, putting up with Monique while she basked in the glory of his talent. Maybe that was why he had lost sight of his moral compass. Not that that excused what he did to Lisa, but I could understand the temptation. After all, I had caved and written an essay for Xander. Was my crime any less than his?

  And I never had given him a real opportunity to fix things. In fact, he had been so nice and helpful when I called from the hospital. He sounded downright sorry. And, anyway, the point was we … I couldn’t be “people like that,” even if I wanted to, which I certainly didn’t.

  Okay, technically, I had bitched about all the extra Law Review work, and Markus did help me with most of it. And, true, Law Review wasn’t a prerequisite for graduation, or even success. I could have quit anytime I wanted to.

  But who would willingly walk away from the prestige?

  It just wasn’t fair that all that prestige came with so much added responsibility.

  Ugh. I fisted my hands. I could hear Xander making a similar argument: an editorial position on Horizons was nice, but why should he have to do all that work, like writing an original essay?

  My fingers clenched tighter. Horror of all horrors, Professor Johnson was right. Again. I did come off like those people. I was everything I criticized Xander and Gemma of being: lazy, unappreciative, and resentful! If an assignment was too hard or time-consuming, or I didn’t like a grade, the fault wasn’t with me; it was with the teacher, or the tutor. But as for the As and the good jobs—I of course considered them to be all my doing.

  “You know, Miss Reznar,” Professor Johnson said, sighing, and I noticed the sound was uncharacteristically faint; its very tenor had me snapping up straight. Because this did not sound like the Professor Johnson I knew. For the first time, the man sounded old and tired, less George Hamilton and more Lincoln after Gettysburg. “In light of all your previous transgressions, I really questioned awarding you the argument, but I thought your brief the best, and considered it only fair. And here we are, yet again.”

  He rubbed his temples, as if trying to relieve a headache.

  Watching this, I gulped. Here was a man who had dedicated his life to educating others, to seeking and promoting new talent, and it would blow up in his face because of me.

  “Unfortunately, because of what you have done, because of your failure to prepare, future students will pay as well. Who will treat the annual arrival of this argument seriously after your … your stunt?”

  His eyes shifted from my face. He gazed into the distance beyond, as if envisioning the prospect, and finding it bleak.

  “I’m really sorry,” I mumbled. What else was there to say? I was a fuck-up. Worse, apparently, I would fuck-over generations of students to come.

  “Sorry?” Professor Johnson repeated, literally biting off the word. The hotshot academic was fully in control again, all traces of vulnerability gone from his voice, his posture. “Sorry doesn’t cut it. And neither does a forfeit. In real life, Miss Reznar, you can’t forfeit on a client. And it’s time you got a taste of real life.

  “I also wouldn’t dare deprive Mr. Powers of the satisfaction of publicly annihilating you. And since you’ve so callously disregarded an opportunity another one of them would have treasured, your classmates have also earned the right to watch you squirm. Now,” he commanded, straightening his jacket, adjusting his cuffs and turning away from me, “I will assume your unfortunate confession was nothing more than a really tasteless case of the nerves talking and you’ll pull yourself together at the last moment, the way you have apparently managed to do the entire semester. Otherwise, Miss Reznar, I’d pray for a miracle if I were you.”

  He stalked away from me, towards the courtroom.

  I stared at his retreating back and prayed first.

  But the earth didn’t open up and no fires sprang to life. Ergo—no miracles.

  So I followed.

  Because, if I could force Xander to confess to his teacher about not writing his own story and deal with a potential expulsion, how could I not face my own music?

  But, boy, did it suck.

  “Yoo-hoo, honey,” my mother called, waving at me when I finally made my way to the front of the courtroom.

  “Mom,” I said, sidling over to my parents. “Ahh … what are you and Dad doing here?”

  I had told my parents about the argument, but neither the time nor the place. I had never entertained the possibility they could see it. I’d always assumed it was closed to a broader audience. Yet here they were.

  “Your professor called and personally invited us,” my mother explained, smiling in the direction of Professor Johnson, who was seated now in the first row, five people away. “Such a nice man.”

  Yeah.

  I stepped back to the defense podium as my mother hollered, “Make us proud!” right at me.

  A court clerk approached to give final instructions and adjust the podium’s microphone.

  “Your opponent will go first,” the clerk said. With a gesture of his hand he indicated Markus, who was already set up at his station. I gulped. This was it. In mere seconds … Armageddon.

  “When he speaks,” the clerk went on, “you sit at the table behind you. Only rise when the judge enters. When it’s your turn, speak into the microphone so the cameras pick up all the sounds,” he instructed.

  “Cameras?” I questioned, my voice coming out in a squeak.

  “Yes,” the clerk nodded. “The argument is simulcast to two other viewing areas. Quite a large turnout today. It’s also being recorded. You can request a copy after.”

  I must’ve looked ill because Markus walked over.

  “What’s wrong, Tekla?” he whispered.

  “Nothing,” I whimpered back.

  Markus frowned at this; he knew I was lying.

  “I thought we were friends,” he prodded. “Good friends. So why won’t you tell me?”

  I moaned. What the hell.
It would soon be apparent anyway. So I told him.

  And then it happened—my very own miracle.

  THERE HAD BEEN NO HESITATION on his part once I disclosed.

  “Here,” Markus said, handing over his note cards. “These are all the relevant cases summarized. They’re in alphabetical order, so you should have no problems finding them quickly when the judge asks you.”

  I eyeballed the stack, and salvation. With the cards I would be able to fake my way through the argument. I remembered enough of the facts from writing the brief, but the relevant law would be a problem, and now here it was, mere inches from my finger tips, alphabetized.

  I snatched my hand back.

  “Markus, I can’t. I just … can’t.”

  And I wouldn’t. And it wasn’t because of Markus’s crush on me; I was pretty certain he would have offered the help if I were Lauren or even Ann. Markus was just that sort of a person, a person always protective of his friends, regardless of their feelings back.

  Still, I wouldn’t take the advantage from Markus. But something in me—maybe not the heart he had hoped for, but something close—swelled for Markus. He was genuinely a good man. My mother had been right: Markus would make someone a very good catch.

  “Sure you can,” Markus argued, shoving the cards towards me. “I have all this memorized. I brought the cards with me just in case. I really don’t need them, so here.”

  “No, it wouldn’t be right,” I said, holding my ground.

  And right then, I wanted to hug him. He really was cute, with his soft brown eyes and cupid bow lips. Sweet. And after Julian being so GQ-suave, maybe sweet wasn’t such a bad thing. “I messed up and I deserve to lose, bad. You, on the other hand, have earned a win.”

  “Well, sure,” Markus retorted with a grin. “I intend to whoop your ass, but not because you were forced to come unprepared. I want to beat you because I’m better than you when you’re at your best. So please, take. I insist.”

  I hesitated.

  I wouldn’t. Shouldn’t. But what if Markus was right? His win wouldn’t be as sweet if everyone knew it came not because of his skill, but because of a lazy opponent. Not taking the cards would almost be doing him a disservice.

  Yeah, right.

  I mentally shook my head.

  That last bit was the biggest pile of … justification manure I had ever come up with.

  Next I would be convincing myself I was actually doing him the favor.

  Fess up, Tekla, my conscience lectured. Markus was giving me the biggest gift of the century, and was dressing it up to make the taking palatable.

  And I sure as hell needed to take it.

  I reached for the cards just as the clerk announced the judge.

  “Thanks,” I mouthed at my opponent. Markus winked and went to take his place in front of the podium. I sat down at the defense table pondering how I would ever repay him.

  And when the judge waved Markus on to speak, I listened to him volley back and forth with the judge.

  Markus was great.

  “Yes, Your Honor,” my opponent and friend was saying, “Elementary School 1 owns a copyright in Miss Smith’s book because she wrote it for her students, during mostly school hours and as part of her curriculum—the very definition of a ‘Work for Hire’ according to the Hays court.

  “And no, Your Honor, the defense,” Markus said, indicating me with a wave of his hand, “cannot claim the teacher exception in this case because courts have construed that exception very narrowly, only to university faculty, and, clearly, as an elementary school teacher, Miss Smith’s work does not fall within its reach. As held in Manasa v. University of Miami, for instance, the teacher exception does not apply to the author of a university funding proposal even though the courts have always looked favorably at colleges when applying the exception. That court was clear. The teacher exception applies to professors only. When the work is completed by someone else, the school owns the copyright.”

  Manasa?

  Damn.

  I flipped through Markus’s stash. The man did have his case law memorized. I hadn’t even heard of the case, let alone remembered its full name or holding. Yet Markus had dropped the case’s stats like they were nothing more than the digits of a very familiar telephone number. What was next, the exact citation and index page? I wouldn’t be surprised. Clearly, Markus was blessed with a photographic memory; else, he had slaved for hours cramming the information into his brain. The judge looked equally as impressed.

  “Yes, but,” the judge said, questioning, as he leaned into his microphone, “if the Copyright Act and the courts did not anticipate schoolteachers falling under the exception, why does the law call it a ‘teacher exception’ and not the ‘professor exception’?”

  Markus straightened. “Your Honor, I am very glad you ask. And, first, let me stress that there is no explicit teacher exception under the Act. In fact, as pointed out by the Hays court, it is widely believed the Act abolished the teacher exception entirely. As such, any academic writing is a work made for hire per se, and the copyright always belongs to the employer. So arguably, Miss Smith would have no legal claim in her book’s copyright. However,” Markus held up a finger, “the courts have made clear that such a conclusion would wreak havoc ‘in the settled practices of academic institutions’ and so determined the exception did survive when it concerned professors, but professors only. And since Miss Smith is a schoolteacher, the exception does not apply to her, and, as such, the Court must determine if the book she wrote falls within the scope of a Work for Hire. And, since she wrote it predominantly at the school, with the aid of her students and school supplies, it clearly does.

  “Moreover,” Markus crooned, his voice and argument so logical he had everyone listening—including me, his opponent—eating out of his palm, “the Hays court provided us with a more straightforward test when determining whether the work in question was a Work for Hire. In excluding professors from the statute, the court reasoned that while a professor’s writing may have been prepared ‘within the scope’ of his employment, it was not ‘prepared ‘for’ the educational institution.’ In layman’s terms, a professor who writes a bestselling novel does not write it for his freshman writing students. He does not use it as a teaching tool, so it is excluded from the statute. Miss Smith, however, openly wrote her book for her students. Even the defense concedes that the sole purpose behind the book was as a teaching aid for Miss Smith’s students. The book, in short, is nothing more than a very creative lesson plan, and as such, one that was clearly done as a Work for Hire and, consequently, the copyright, and all its attenuating financial proceeds, legally belong to Elementary School 1, my client.”

  Shit, shit, shit.

  I sat in my seat, unmoving, unwilling to even blink lest the judge see my reaction and, like in poker, figure I was the player with the weaker hand.

  But shit. I was screwed. Markus had an honest-to-goodness new legal test he had seemingly pulled out of thin air. Sure, the Hays court had mentioned, in passing, something about a work being prepared “for” an employer, but it had never based its decision on that language. I was certain.

  I searched through Markus’s case summaries just to make sure.

  Yup. I was right.

  No mention of the “for” language in the holding.

  Still, Markus was ingenious for highlighting the phrase because if law school taught me anything, it was that judges loved those lawyers who gave them easy solutions in their arguments.

  And Markus’s proposed test was so simple, so graceful, so straightforward. So effective. What judge wouldn’t love it?

  Shit.

  “But let’s not stop with just the case law,” Markus went on. He must have sensed victory was imminent because, if sound could move, his voice was about ready to dance a victory jig. “Let’s also analyze policy.”

  Policy? Markus?

  I scowled. Markus was never good at arguing policy, yet he was willing today to tackle what he s
urely considered my strong suit. Professor Johnson had said as much when he awarded us the argument. Markus excelled with the law, and I favored the facts.

  Markus was dead serious about winning.

  “A recent New York Times article has touched on the repercussions we, as a society, will face when the Court rules in Miss Smith’s favor,” Markus said, and I scrambled to recall what article he could possibly have been referring to.

  Fruitlessly.

  Because, what with Julian and Xander and Gemma, I had not been following the news. And I should’ve been. It was a lawyer’s responsibility to be current on all the applicable developments. If this were real life and not moot court, my client could sue me for malpractice on that fact alone.

  “Teachers are now using the Internet to sell their lesson plans,” Markus continued. “They use school resources to develop material for their public school classrooms and then, without permission and without sharing any of the proceeds with the schools, sell it, for sometimes as much as thousands of dollars, to finance vacations, home renovations and fancy dinners. Some sites record sales of as much as hundreds of thousands of dollars—money that is not going to the schools, where it is desperately needed. The Work for Hire doctrine in the Copyright Act was created to avoid just such situations.” Markus placed his elbow on the podium and rested his chin on his fist, like an old acquaintance about to launch into a lengthy, but comforting, explanation.

  “Fashioning lesson plans is an intrinsic part of the teacher’s job,” Markus highlighted, his very posture warning the judge not to interfere. “It is, among other things, what she is paid a salary to do. The law does not permit her to profit a second time from the material—and with good reason. Because what will happen to the profession when most teachers start to rely on a few lesson plans created by others? They won’t need to come up with their own, original material. Creativity and flexibility will go out the window. Teachers will be no more than drones in a classroom, and is that what we as a society really want and need for our children? I would argue not.” Markus shook his head, then paused before starting up again. “And permitting Miss Smith to keep her copyright will set us on just such a course.” He straightened. “Miss Smith wrote her book because she needed a new lesson plan to teach her students reading. She wrote it for them, using her employer’s resources. The book, therefore, is clearly a Work for Hire, and the copyright belongs to the school. Thank you.”