Cite as 566 F.2d 1307 (1978)
City of Fairfield, 414 F.2d 687, 692 (5 Cir. 1969).[1] Accordingly, we look at the record in the light most favorable to Murray, the party opposing the motion, and take her allegations as true. United States v. Diebold, Inc., 369 U.S. 654, 655, 82 S.Ct. 993, 8 L.Ed.2d 176 (1969); E. C. Ernst, Inc. v. General Motors Corp., 537 F.2d 105, 108 (5 Cir. 1976).
In May 1975, defendant Gelderman approached Murray about the possibility of producing a book containing the menus of famous New Orleans restaurants. The idea originated with Gelderman, who had seen a similar book based on restaurants in Aspen, Colorado. Murray was initially uninterested in the project but later agreed to undertake the creative and editorial work. Murray, Gelderman, and defendants Viguerie and Uria met to discuss forming a corporation to publish the menu book. The articles of incorporation were executed in July 1975, with defendants providing the necessary capital. Although Murray was made an officer and director of the corporation, she declined for financial reasons to invest as a shareholder.
Murray worked on the book by herself for several months, making the necessary contacts and handling various chores relating to publication.[2] The book was published in October 1975, and after publication the copyright was issued in the name of the corporation. Soon thereafter the relationship between the parties began to disintegrate, and this lawsuit followed.
This sequence of events is not critical to the disposition of this case. The crucial question is whether the working relationship between Murray and the defendants was sufficient to bring the “works for hire” doctrine into play. We hold that the doctrine is applicable.
The Copyright Act of 1909[3] provides for statutory copyright protection for an “author,” 17 U.S.C. § 4, and defines “author” to include an employer in the case of “works made for hire.” 17 U.S.C. § 26. The statute represents a codification of the so-called “works for hire” doctrine recognized by the Supreme Court in Bleistein v. Donaldson Lithographing Co., 188 U.S. 239, 23 S.Ct. 298, 47 L.Ed. 460 (1903).
This Court has apparently not been called upon to apply the doctrine,[4] but the general principles in this area are fairly clear. An employer and an employee are not precluded from agreeing that the copyright in a resulting work will vest in the employee, but § 26 creates a rebuttable presumption of copyright in the employer that can be overcome by evidence of a contrary intention of the parties. Brattleboro Publishing Co. v. Winmill Publishing Corp., 369 F.2d 565 (2 Cir. 1966); Lin-Brook Builders Hardware v. Gertler, 352 F.2d 298 (9 Cir. 1965); Picture Music, Inc. v. Bourne, 457 F.2d 1213 (2 Cir.), cert. denied, 409 U.S. 997, 93 S.Ct. 320, 34 L.Ed.2d 262 (1972).
An employer is entitled to the copyright only when the work was created by the employee within the scope of his
- ↑ The district court granted the motion to dismiss and then held that defendants’ alternative motion for summary judgment was moot. However, as we have said before, “the label that a district court puts on its disposition is not binding on a court of appeals.” Tuley v. Heyd, 482 F.2d 590, 593 (5 Cir. 1973).
- ↑ For example, she selected the restaurants to be featured, secured permission from their proprietors to reproduce their menus, chose an artist to paint a cover picture and supervised his work, dealt with the printer, and engaged in promotional and public relations activities.
- ↑ Act of March 4, 1909, 35 Stat. 1075. After years of effort and frustration, the copyright laws were extensively overhauled in 1976. Pub.L. 94–553, Oct. 19, 1976, 90 Stat. 2541. The revised statutes are not effective until January 1, 1978, and are thus inapplicable in this case. The new law retains the work for hire doctrine and provides that “the employer … is considered the author for purposes of this title, and, unless the parties have expressly agreed otherwise in a written instrument signed by them, owns all of the rights comprised in the copyright.” 90 Stat. 2568 [new 17 U.S.C. § 201(b)].
- ↑ The parties have cited us no Fifth Circuit cases on this point, and our research has revealed none. Not surprisingly, most of the case law has emanated from the Second Circuit.
