Re: "University as author?"

On Aug 18, 2005, at 3:29 PM, Agenbroad, James ((Civ,ARL/CISD)) wrote:

> In my defense, I have seen many others (including courts) confuse
> the two different tracks of WMFH.

No doubt there are many lawyers out there who either (1) don't understand the statute properly or (2) intentionally confuse the issue under the guise of zealous advocacy. And certainly there are many, many, many judges and their law clerks who know nothing about the copyright law other than what the advocates tell them.

Erroneous, fuzzy application of a statute by some lawyers and judges ought not be encouraged on this list. If one wishes to discuss the why the two prongs should be conflated, that is ok by me. But let's not confuse the lurkers on this list by conflating the analysis without clearly labeling what we are doing.

The conflation of the two types of WMFH is common enough. And it gets even worse when people are under the second prong (non-employee) and then ignore the requirements of being within the magic 9 categories and the requirement of there being a writing.

WMFH is a technically messy area with distinctions that do not necessarily track traditional agency principles -- and yet the court tells us that in some instances we should use general agency principles -- not those of any state, mind you (Erie be damned, apparently), but some rebirth of a general federal common law.

There are lots of fun ways to go wrong in wmfh even when not in an unusual fact setting.

Steve

-- 
Prof. Steven D. Jamar                               vox:  202-806-8017
Howard University School of Law                     fax:  202-806-8567
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