16 March 2008

Unreal Estate (2)

(continued from 15 March) I'm going to start analyzing that ungainly mess by trimming away some of the simpler pieces first. The best way to do so is to recognize that a single narrative sentence frequently is the least effective way to communicate, particularly when communicating a list that itself consists of compound parts. And, of course, things are worse when the people who wrote the sentence are lousy writers to start with...

Subparagraph (1) is actually pretty easy and straightforward... grammatically, at least. Putting it into a definitional mode, checking for transitivity problems, and doing all of those other tasks required of a formal grammar construct, we end up with:

A work prepared by an employee within the scope of his or her employment is one of the two types of work made for hire.

That seems to make sense, right? I'll return to what "employee" and "within the scope of his or her employment" mean later on; the key point here is that the restatement above does not change either the meaning or priority of meaning of any element of that definition.

Subparagraph (2) is more of a problem. Had this been given to me as a student exercise, the student might have hoped for a D if I was feeling particularly generous. Not only is the first sentence badly mispunctuated, but it relegates critical definitions to later sentences. Perhaps whoever wrote this monster had tried to draft a patent at some time in the past — it sure looks like a dependent patent claim, which is nothing to aspire to. In any event, I'm going to radically reorganize subparagraph (2).

A work specially ordered or commissioned for use as any of the following is also a work made for hire, if the parties expressly agree in a written instrument signed by them that the work shall be considered a work made for hire:
(a) a contribution to a collective work;
(b) a part of a motion picture or other audiovisual work;
(c) a translation;
(d) a supplementary work, that is a work prepared for publication as a secondary adjunct to a work by another author for the purpose of introducing, concluding, illustrating, explaining, revising, commenting upon, or assisting in the use of the other work, such as forewords, afterwords, pictorial illustrations, maps, charts, tables, editorial notes, musical arrangements, answer material for tests, bibliographies, appendixes, and indexes;
(e) a compilation;
(f) an instructional text, that is a literary, pictorial, or graphic work prepared for publication and with the purpose of use in systematic instructional activities;
(g) a test;
(h) answer material for a test; or
(i) an atlas.

All I have done here is rearrange the language in the statute so that the parts that need to be next to each other are. This, by itself, eliminates two sources of confusion:

  • In the statutory definition, the "written instrument" clause is appended after the invocation of an atlas, without any distinguishing punctuation different from the rest of the list. Note that the revised list separates each subtype with a semicolon, not a comma as in the statute. One might, therefore, argue that "written instrument" applies only to an atlas. That would not only make no sense whatsoever — there is no reason to assume that a documentation requirement would apply only to atlases, particularly in light of the later-qualifying sentence that expands on "supplementary work" and "instructional text," but it would be inconsistent with both substantial then-existing law and practice (and would necessarily impair many related contracts) and the legislative history of this mangled provision.
  • The definitions applicable to one subtype only desperately need to be connected to, and subordinate to, that subtype only, by more than a precatory clause.

More another time.