RE: derivative work - rights to publisher and rights reserved

The work cannot be work for hire because it has already been created, and WFH cannot apply retroactively. Playboy v. Dumas, 53 F.3rd 549 (2d. Cir. 1995), held that both parties must agree beforehand that a work will be WFH, but it allowed the agreement to be signed afterwards. However, Schiller & Schmidt, Inc. v. Nordisco Corp., 969 F.2d 410 (7th Cir. 1992), had already held that not only must the parties agree beforehand; they must execute the signed agreement beforehand, as well.

In addition, it's simple common sense that WFH can't be retroactive. If a work is created originally as a non-WFH piece, the copyright comes into existence belonging to the actual author. Since the copyright exists, it can't come into existence again with the employer as the putative author. Instead, the rights must be transferred to the employer.

• Mike Bradley www.techpubs.com