On November 18, 2005, the Ninth Circuit issued an opinion upholding a finding of copyright infringement by Dastar Corporation, 20th Century Fox v. Dastar. The issue in this appeal is what constitutes work for hire, for the purpose of the copyright law, and whether Pres. Eisenhower's memoirs should be considered such work for hire.
I think the dissent by D.W. Nelson is more persuasive. The key inquiry is whether the agreement Eisenhower reached with a publisher in 1948 (who then sold the rights to 20th Century) intended to create a "work for hire" situation. As things stood in 1948, the work for hire doctrine applied only to employer-employee situation. That state of the law is relevant to determine the parties' intent, particularly when coupled with the fact that Eisenhower executed a separate contract assigning his rights in the book to the publisher. If the parties intended to have a "work for hire" relationship, they would not need a separate assignment of copyright, as the publisher would have automatically become the copyright holder.
The majority's extensive discussion regarding the fact that the current 9th Circuit law permits independent contractors to be in a "work for hire" situation misses the mark. The change in the law occured in the 1960s, years after the 1948 contract between Eisenhower and the publisher. The new law would have no bearing on the parties' intent in 1948.
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