- A work by an employee that is not within the scope of his/her duties does not meet the requirements of subparagraph 1. For example, a janitor who writes novels on his/her lunch hour is not producing WFH.
The trickier question is whether works produced separately by the employee — for some value of "separately" — but are nonetheless comparable to his/her duties and employment fall inside the definition. In some fields, it is extremely common for the employer to make this kind of claim, although this is more often a patent than a copyright issue. In others, it is not; consider the graphic designer for a company that produces human resources materials for its clients who, in her spare time, designs books and paints covers. Consider the lawyer who writes legal thrillers as a part-time partner in a major law firm. (Obviously, neither of these is hypothetical.) More disturbingly, consider the employee of a film studio who writes a spec screenplay...
- A work that exists before the "special[] order or commission[]" — that is, the "written agreement signed by [the parties]" — itself exists does not meet the requirements of subparagraph 2. I freely admit that this is a much harsher interpretation than many in the IP industries would accept, particularly regarding textbooks and supplemental materials. However, despite the substandard writing in the definition, the only way to read the "special order or commission" and "written agreement" language in subparagraph 2 that does not make them even more ridiculous than they already are is to apply them to each of the nine types of works, as I did in my "reorganized" version."
This has farther-reaching implications than one might suspect. Periodicals are fond of claiming the copyright in contributions, particularly in the more journalistically oriented end of the industry. However, under this reading of the statute, if the work existed before submission to the publisher, it cannot be treated as a WFH, because it will fail the "specially ordered or commissioned" element of the definition. For a non-employee work to be WFH, it must meet all three of the conditions:
- Specially ordered or commissioned, and
- Written agreement signed by the parties for WFH, and
- Falls inside one of the nine categories of works.
If it fails any one of those conditions, it's not properly WFH. This is precisely why the various Superman lawsuits have come out the way they have: One cannot retroactively designate a work as WFH. (Having the time and resources to win the lawsuit to validate this, though, is another issue entirely.)
- A work that otherwise meets the requirements of subparagraph 2, but is not in one of the nine categories acceptable as WFH, does not meet the requirements of subparagraph 2, either. The publishing industry in particular has gotten away with improperly imposing WFH agreements for non-WFH for decades.6 Here are a few examples, again in no particular order:
- A book-length work of fiction based on media properties, such as an authorized Star Trek novel
- A book-length work of fiction for series not based on media properties
- A freelancer's cover design or painting for a book or magazine
- A graphic novel both drawn and written by the same person
- A screenplay that is never produced, or discrete portions of a screenplay that is never produced7
- Computer source code written by a freelancer... even if "compiled" instead of "interpreted"
I will delve into a couple of these in greater detail in the next entry. And this is far from an exhaustive list.
- The music industry also tried, in the course of the accession to the WIPO treaty, to have phonorecordings treated as WFH. The provision even made its way into the statute, but was quickly excised as part of a "technical correction." The last actual paragraph of the definition of WFH in § 101 (which I did not quote) is the statutory language that makes that "technical correction" and invalidates any contract signed during the year-long "validity" of that treatment.
- The immediate, and obvious, objection is that this is also subject to the relevant collective bargaining agreements. I will discuss the "contracting around" problem a couple of entries down the road.