And of course one question here would be the character of the work. If
the author wasn't an actual employee, the work would have to be in one
of the enumerated categories to qualify for WMFH status.
I suspect that the difficulty is that bankruptcy judges aren't copyright experts. IANAL, but is it correct that bankruptcy is handled in state courts to uniform federal procedures? If it's a state judge he may have NO authority to rule on actual copyright law (In this case, who IS the legal author of the work, the writer or the company) because of federal preemption. I suspect that the best thing would be to have your objections made part of the record, so that whoever is purchasing the assets of the publisher is on notice that they possibly aren't actually purchasing this work. Of course this probably isn't an isolated case. It's worth looking at other works to see whether they've done the same thing.
It's probably important to make sure that the court preserves an actual copy of the contracts with their authors. Absent an employee/employer relationship, my understanding is that an explicit grant in writing is necessary for WMFH status. Make it clear that you're not just looking for the enforcement of a contract clause. In the absence of an explicit contract clause granting the company rights as a WMFH, they have no rights other than those granted by the contract.
IANAL, free advice is overpriced, etc.
-----Original Message-----
From: CNI-COPYRIGHT -- Copyright & Intellectual Property
[mailto:CNI-COPYRIGHT[_at_]cni.org] On Behalf Of Dodi Schultz
Sent: Monday, May 29, 2006 12:35 PM
To: CNI-COPYRIGHT -- Copyright & Intellectual Property
Subject: [CNI-(C)] Re: Defunct publisher had grabbed copyright
Carol Busby, you posted the tale of a client whose publisher had,
contrary
to the contract provision requiring that it register copyright in the
work
in the author's name (which is the usual procedure), had instead
registered
the work in its own name. This apparently occurred 15 years ago, and the
publisher is now out of business.
(1) You said the publisher called itself an "employer for hire," a term
with which I'm not familiar, and I don't believe it appears in Title 17.
Is
that the same as calling the book a WMFH? Is the term a valid one?
(2) What was the wording of the notice on the copyright page of the
book?
Did it name the author, per the contract? Or the publisher, per the
registration? If the latter, I'd assume the author would have noticed
and
objected immediately--even before publication, upon seeing proofs; I
gather, therefore, that the published notice asserted copyright in the
author's name. What bearing would this have on the situation?
(I'm now wondering, as an author, if any of my publishers have pulled
anything like this. Aaaargh!)
--DS
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