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And now, the beginning of a short assignment. So to speak. We're going to start with some grammar, and it's going to extend over the next couple of weeks at irregular intervals... and it's going to look very, very unfavorable indeed to the entertainment industry (in particular, to the publishing and music industries) by the end of it.
Since it's the weekend, we'll start just by quoting the relevant section of the statute. Two caveats first:
- I do not defend the crappy writing I'm about to quote. One of the problems with not being dictator is that I have to put up with the way the law is, not the way I believe that it should be.
- I will freely admit to having agendas of my own here. However, that necessarily means wrestling with everything to find the "most correct" meaning and then comparing it to what I'd like. The converse — which is more than vaguely intellectually and actually dishonest — usually results in "judicial activism." (At least, it does if you can get a judge to buy it. Otherwise, it's called "lobbying.")
So, then, without further ado, I quote from 17 U.S.C. § 101:
A "work made for hire" is —
(1) a work prepared by an employee within the scope of his or her employment; or
(2) a work specially ordered or commissioned for use as a contribution to a collective work, as a part of a motion picture or other audiovisual work, as a translation, as a supplementary work, as a compilation, as an instructional text, as a test, as answer material for a test, or as an atlas, if the parties expressly agree in a written instrument signed by them that the work shall be considered a work made for hire. For the purpose of the foregoing sentence, a "supplementary work" 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, and an "instructional text" is a literary, pictorial, or graphic work prepared for publication and with the purpose of use in systematic instructional activities.
For the moment, just read that over. We'll get into the heavy lifting over the next few days. And I warn you — it is indeed heavy.