Work for Hire

by Margo Karasek

  Markus walked away from the podium.

  He was finished.

  Oh, God. I felt my breakfast rise up to my throat. It was my turn.

  I couldn’t get my legs to stand. My stomach clutched and unclutched, spastically. I was hot, and cold, and could feel the hundreds of eyes behind me boring into my back. The judge in front sat, unmoving, waiting. The sudden quiet in the room roared in my ears like an oncoming avalanche.

  How could Markus be finished already?

  I toddled over to the podium, the cards—Markus’s note cards—clasped in my suddenly moist hands. They somehow felt inadequate now.

  My mind blanked.

  A light on the podium blinked green.

  I vaguely recalled the clerk saying green meant go. An orange light would come on when I had thirty seconds left of my five minutes to present, and a red light would indicate the argument was over.

  I had to speak. Immediately.

  My mouth opened, but I could vocalize nothing.

  Think, think, think!

  I placed the cards on the podium and put my hands behind me. They curled into fists, my nails biting into the skin.

  The sharp pain focused my attention.

  I couldn’t just stand there, silent, for the next five minutes.

  Thoughts, facts, started slowly coming back to me.

  “Ah,” I tried. I would begin with what I remembered and take it from there. “May it please the Court,” I said, my voice booming into the microphone. It clashed with the high-pitched shriek of electronic feedback. I shifted slightly back. “My name is Tekla Reznar, and I represent the defendant, Miss Smith, in this case.”

  I looked up at the judge for some sign of displeasure, but found none.

  So far, so good.

  “When Miss Smith began writing her book she in no way, shape or form thought she was doing something mandated by her teaching contract,” I started, proud that the words now flowed out of me. Hey, this wasn’t so bad. “She took on the project, yes, to partly benefit her students, but mostly because she astutely recognized a need in children’s literature. The school cannot … ”

  “But,” the judge cut me off, “under the test set up in Avtec, doesn’t the school own the copyright precisely because the book was a children’s book and therefore of the type she was hired to perform, regardless of her intent and whether or not said responsibility was specifically enumerated in her contract?”

  Avtec, Avtec.

  “Ah,” I raced through Markus’s case summaries and scanned the holding. Thank God the case started with an A. I owed an even greater thanks to Markus for being so neat and organized.

  “I’m sorry,” I said, flushing at the delay I had caused. “But, no. Under Avtec, the original purpose of the work in question is just one part of a three-part test. Equally as important is whether the work substantially occurred ‘within the authorized time and space limits’ of the job and I would argue that, in the present case, it does not. Miss Smith wrote most of her book while at home and during her free periods at school. Therefore … ”

  “But how about Vanderhurst?” the judge demanded.

  “Uhh … ” I froze. Vanderhurst? My luck was clearly over. The judge had moved on from the As.

  My fingers shook as I flipped through the note cards. From the look on the judge’s face, I wasn’t flipping fast enough. I didn’t even want to contemplate the expressions of those behind me: my mother’s was surely crestfallen; my father was likely pained. And Professor Johnson’s …

  “Yes, Vanderhurst,” the judge repeated, his voice brimming with impatience. “That court ruled the copyright did not belong to the original author even though said author was a college professor, a position that the law has been especially careful to exclude from the Work for Hire doctrine.”

  Something about the judge’s tone told me the case should be easy to distinguish from the other applicable law, that it was nothing more than a minor detour in a well-established legal precedent likely leaning in my favor. But if I didn’t do the distinguishing—and quickly—I could lose the whole argument on that embarrassingly insignificant point of law alone.

  Yet the faster I searched, the less I could find. The note cards stuck together and threatened to slip out of my grasp entirely; I was all-thumbs.

  Calm down. I tried to ignore everything and everyone but the cards in front of me. Finally …

  “Yes, that is no,” I almost yelled out as Markus’s Vanderhurst summary materialized in front of me. “The case is not applicable in the current situation because the author in that case was specifically and explicitly hired by the university to write the work he later tried to claim a copyright in, a move clearly in violation of the Work for Hire doctrine under the Copyright Act. Unlike that author, Miss Smith was never hired by the school to write a children’s book.”

  “Yes,” the judge, my tormentor, went on. “But what of the plaintiff’s ‘for’ test? Even you do not dispute in your brief that the defendant wholly wrote the book for her students.”

  Good question. And one I couldn’t avoid, but should have been prepared for. The test was the core of Markus’s argument, and probably figured prominently in his brief. I had a copy of the latter. Markus had delivered it to me days before, and I should have read it. Problem was, I hadn’t. Like with everything else in life, I was so cocky and sure of myself and my skill, that it didn’t even dawn on me to scan the brief early for some point of law I might have been unfamiliar with and might need to spend more time researching. I had just assumed reading the brief a couple of times the night before would be sufficient preparation. But then, because of Gemma, I hadn’t even done that much.

  I reached for Markus’s index cards again, but returned them to the podium. The answer wasn’t there. If it was anywhere, it was in me.

  I took a deep breath …

  “The Hays court,” I answered, “does mention the ‘for’ language, but it is in no way central to the holding, and with good reason. Exclusively relying on a ‘for’ test would be like splitting hairs. Let’s use the plaintiff’s own example,” I ventured, taking a glimpse at Markus, “to understand why. According to my esteemed opponent, a hypothetical writing professor’s bestselling novel is not a Work for Hire because the professor did not write it for his students. But what if, like many college and university professors before him, he assigns the book as mandatory reading to the class. Is it for them then? I would argue yes, yet the Hays court does not base its decision on such a minor distinction. And how about the case,” I said, bringing up one for which I unfortunately could not recall the name, had no time to search for it, and only hoped the judge wouldn’t notice or acknowledge the omission. “Where the courts ruled a professor owned the copyright to his lectures delivered in class? Clearly, the lectures were created for the students. Under the plaintiff’s test, the copyright should have gone to the university, yet it didn’t.”

  I held my breath, waiting for the judge to demand the case name. But he didn’t. I rushed on before he changed his mind.

  “And what of the plaintiff’s argument about teachers selling and profiting from their lesson plans?” There was something about Markus’s theory that, no matter how graceful, just didn’t sit right with me. I couldn’t put my finger on it—at least not yet—but maybe my talking it through would clarify things, for the judge and for me. It would, in any event, fill a good few seconds, and get me that much closer to the end. “Would anyone seriously consider a book worthy of being published on the same scale as a lesson plan for, let’s say, counting numbers using candy? The extra work involved in the former in no way equates to the latter, yet the plaintiff would have us treat, and legally value, the two as absolutely the same. Is that fair?”

  The judge didn’t answer.

  “And really, even if they were,” I continued, “what would be so bad about teachers making some extra money from their lesson plans in the first place?” I wished I could rebut the article directly, point out some fact
that contradicted Markus’s interpretation, but since that wasn’t an option, I turned to what I did know. “When I was a student in elementary school I never saw my teachers work on their plans while we were in class. I assumed they did all the work at home, on their off hours. They didn’t have to be super creative—but the good teachers always were, because they put in extra time—their free time. Should the law penalize them for the sacrifice and additional effort?

  “The plaintiff warns that letting teachers keep the copyright in their lesson plans will hurt society,” I said, and I was surprised by the now steady tenor of my own voice. I wasn’t nervous.

  Lord.

  The thought almost gave me pause. Somewhere, with all the talking, the tension had melted away and only adrenaline remained, with an ever-growing need for victory. I wanted the judge to see things my way, to favor my point, to choose my version over Markus’s. Not because I necessarily deserved a win, but because I craved one. This was why people—why I—became lawyers in the first place, for the high of competition, the heady taste of triumph.

  “I would argue the opposite is true. If we don’t let teachers keep the extra income, we remove the incentive for creativity, for the extra effort. If my salary stays the same whether I push myself or not, I’ll take the road of minimum effort. That’s human nature. Big business recognizes this basic tendency with its own employees. That’s why banks and brokerages and other financial institutions award performance bonuses. They are the carrots that push the institutions forward. Why would we deprive teachers of the same benefit, especially since their salaries in no way compete with the bloated ones in the finance industry? Should the law create even more of an incentive for the bright and gifted to turn away from teaching? The plaintiff says yes, but I would urge the Court to really contemplate the consequences, and send a different message.”

  The judge harrumphed, but otherwise remained silent, still letting me keep control of the floor.

  I took full advantage because somehow, when the nerves had departed, a flood of thoughts, experiences and ideas had roared in to take their place, from my days as a student in elementary school, to Xander and Gemma’s current high school experience, all the way to books authored by celebrities who couldn’t possibly write, until they finally crystallized on the last weeks and days of my frantic schedule.

  I did have the winning argument, and I had the facts to prove it, no matter what the law said.

  “For the past couple of months I have been working as a tutor,” I said, now barely able to contain my excitement. Yes, my tutoring experience gave the answer. Because according to Markus’s theory, Stephen Lamont could say I had no legal claim in Xander’s Horizons story. I had been paid explicitly to write it for the boy, therefore the copyright, with all its rewards, was Xander’s. “In that capacity I was forced—no, had been willing to—do things that I, and most everyone else in this courtroom would, at the very least, consider morally questionable, if not downright ethically untenable. I wrote essays and tests that my students ultimately passed off as their own. I was a willing, and paid, companion in their cheating. I’m sure Your Honor would agree,” I said, nodding towards the judge, “that this conduct would qualify as nothing else. The law, after all, does not smile on plagiarism. And a student who tries to pass off someone else’s work—and effort—as his own is nothing more than a cheat, and a lazy one at that. Society frowns on that sort of behavior. We demand our students do their own work because that’s how they learn, develop their brains, and become contributing members in our communities. Cheating undermines all that, and so we have chosen to punish it harshly. But what if,” I said, pausing for emphasis, “we analyzed the conduct from a different legal perspective?

  “I was hired,” I admitted to my peers and parents and professors, “to explicitly write material for my students. The students, in essence, were my employers. Among other things, I authored a story that was subsequently selected to appear in an anthology, not under my name, but that of my client. When the client’s teacher learned the truth about the story, he gave him an F, withdrew the story from the anthology, and moved to expel the student from school. But were the teacher’s actions legally justified? Under my opponent’s expanded Work for Hire doctrine, the copyright should rightfully belong to my student. After all, he paid for my services, and I fully understood my role as nothing more than a highly paid ghostwriter. And if the copyright in the work is the student’s, can we really say he cheated when he claimed full authorship of the piece, with all its attendant credit, like a high grade and national publication?

  “The publishing world itself thrives on just such relationships. How many books are written by ghostwriters who receive payment for their work—but rarely a credit? These dynamics are at the very core of the Work for Hire doctrine: he who pays owns.

  “And, granted, often, such relationships do work. When a corporation hires a writer to create its promotional material, we have to make sure the corporation, and not the author, maintains the copyright because otherwise one employee could hold a whole corporation hostage. Without Work for Hire, the corporation would have to employ someone new to rewrite the same material every time the old employee was fired or decided to leave. And the employee would be free to sell his employer’s secrets to the highest bidder—the competition. The law has to step in to prevent such a scenario. And, arguably, the same rationale holds true for the ghostwriter hired by a publisher to write someone else’s story. We don’t want said writer to be free to resell the same, probably highly desired, celebrity story to a competing publisher, thereby undermining the profit of the first publisher and diluting the exclusive.

  “But do the same rationalizations apply to my tutoring scenario?” I asked. “Of course not,” I answered. “Because there is no societal value in students paying someone else to do their schoolwork for them. That’s why no one has attempted to argue that an essay purchased off the Internet by a student should fall under the Work for Hire doctrine, although technically it could. Any other result would wreak complete havoc in schools, colleges and universities. The well-off could buy their high grades and would be protected from plagiarism charges by the very copyright laws that made plagiarism wrong in the first place!” As I pitched my voice high, I was surprised to see the orange light blink on the podium in front of me. I had thirty seconds left.

  “Yet the plaintiff,” I rushed on, “proposes just such an alternative. Was the essay in question prepared by an employee—me—within the scope of my employment? Check. Was the essay of the type commissioned by my employment? Check. Was, as the plaintiff’s counsel phrased it, the essay written for my student’s class? Check, again. But common sense dictates that no matter how many checks it gets, the essay cannot fall under Work for Hire because such a result would be disastrous.” I paused long enough to catch a desperately needed breath. “Which takes us back to the key of the case before the Court today: common sense. I urge Your Honor to rely on it freely when making his decision. Because no matter how nicely the plaintiff packages the alternative, taking the copyright away from Miss Smith and awarding it to the school, her employer, would violate all rules of logic. Schools do not hire teachers to write children’s books. Period. So they cannot claim a copyright and a financial stake in one when a teacher does. Common sense. Thank you.”

  I moved away from the podium, and, after the formalities of the judge exiting the courtroom, plopped my body behind the defense table, stunned, that I was finished—finished!

  I was also stunned that the situation with the Lamonts had trickled into my legal work—and simply that I had survived what could’ve been a massacre.

  Did I win the argument? Who knew?

  Did it matter? No. Because I had gotten through it sounding somewhat eloquent. This meant—I wouldn’t fail!

  I could barely take in the round of applause for Markus and me that followed, Markus’s congratulatory handshake, my parents’ “Honey, good job!” and Professor Johnson’s queer stare. Nine l
ives, Miss Reznar, it said.

  The personal onslaught by the effusively admiring audience was even more surreal.

  Lawyers, judges, and other lofty people wanted to speak to me, an unimportant student.

  “ … nice job, Miss Reznar … ”

  “ … really smart argument … ”

  “ … call us any time you’re interested in a part-time legal position … ”

  “ … our summer associate position would be perfect for you … ”

  “ … we could use another law clerk … ”

  “ … hiring attorney at Brown & Prescotts … Whitehall Associates … Lily, Weiss & Gamble … U.S. Attorney’s Office … Legal Aid Society of New York … Manhattan’s District Attorney … ”

  “ … here, please, take my business card … call us … ”

  And the business cards piled on in my hands, then pockets, like confetti on New Year’s, marking a new start.

  I stumbled out of the courtroom, desperate to get a handle on my newfound good fortune, but instead was distracted by the cell phone I pulled out of my bag when I tried to organize the business cards.

  I had one new text message. From Julian.

  “You’ll do great. Yours, always,” it read.

  I stared at the message and wondered what, if anything, it would mean for the future, for us. It wasn’t exactly an apology. Still …

  “Tekla?”

  The sound of Markus’s voice had me looking away from the phone and into his smiling face. I shut off Julian’s message.

  “The judge has made his decision. Come on.”

  I reached for Markus’s outstretched hand.