The U.S. Court of Appeals for the Ninth Circuit has affirmed a finding that Dwight Eisenhower’s 1948 account of World War II, Crusade in Europe, was a "work-for-hire" even though Eisenhower signed a contract transferring title in the work after it had been completed. 20th Century Fox Film Corp. v. Entertainment Distributing, Case Nos. 03-57052, 04-55410 and 03-57234 (9th Cir. Nov. 18, 2005) (Tallman, J.).
20th Century Fox alleged that Dastar’s 1995 video documentary, Campaigns in Europe, infringed its copyright in Eisenhower’s 1948 book. Fox claimed to have acquired the television rights from Doubleday (Eisenhower’s publisher). Dastar argued Doubleday had nothing to assign because its 1995 attempt to renew the copyright was ineffective. According to Dastar, the book was not a work-for-hire, and, therefore, Eisenhower’s heirs, not Doubleday, had the author’s right to renew.
The Copyright Act of 1909 made "employers" the legal authors of "works made for hire" but did not define either term. While Eisenhower was clearly not an "employee" of Doubleday, the district court ruled his book was still a work-for-hire under cases that expanded the concept to include works by independent contractors created at the "instance and expense" of the commissioning party.
The Ninth Circuit reiterated that the "instance" test (that is, whether a work was created at someone else’s request) turns on whether "the motivating factor in producing the work was the employer who induced the creation." Here, the district court cited a number of facts to support its conclusion that Eisenhower had produced the work at Doubleday’s request: he had spurned other book offers until approached by Doubleday,he did not begin writing the book until after reaching a "gentlemen’s agreement" on terms and Doubleday had supervisory and editorial power.
While there was no dispute Doubleday paid the expenses of writing the book, Dastar pointed out that Eisenhower had formally agreed to transfer title of the book to Doubleday only after it had been written. It argued this fact rebutted any suggestion the book had been a work-for-hire. The district court disagreed, reasoning Eisenhower entered into the later agreement for reasons relating to capital gains tax rules and not because either party thought there was a need to legally transfer the title to the copyright. In view of these facts, the Ninth Circuit found no clear error in the district court’s finding that Crusade in Europe was written at the "instance and expense" of Doubleday.
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