RE: Re: derivative work - rights to publisher and rights reserved

> In other words, I don't see anything in the language of the
> Act that
> says I can't revise a law review article I wrote about P2P
> file-sharing if it is "specially ordered" by you for possible
> inclusion in a multi-media presentation targeted to high school
> students instead of lawyers; and decide later whether it "shall [or
> not] be considered a work made for hire,"

Granted, it's not specifically in the language, but it's simple logic, isn't it? I know, this is the law we're talking about, not logic, but still.

One can't commission a work after it has already been created, one can only buy it or, at least, buy the rights. If WFH contracts can be signed after the fact, what is the point? After the fact, all the benefits of WFH can be obtained by other means, and it would be contrary to the purpose of the WFH clause, which is to provide a convenient, reasonable means for employer/producers of heterogeneous works to control the rights of all the contributions.

I also think that retroactive WFH is illogical because it hinges on authorship. The employer/producer obtains the copyright because he is the *legal author,* not because he is the employer or producer. But if a work is created by a non-WFH procedure, the legal authors are the actual creators, and there is no way that a work can have two sets of authors in this manner. There can only one set of authors.

• Mike Bradley www.techpubs.com