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Write it Right - Issue #11

Write it Right
Write it Right
Welcome to Write it Right Issue #11, where we walk through work-made-for-hire contract tips, the latest in Amazon’s antitrust case, and a copyright infringement case in the Fifth Circuit.

Work-Made-For-Hire Agreements
You may have come across works-made-for-hire in your authoring journeys. In a nutshell, a work-made-for-hire assigns the copyright to the person or entity who employs or commissions your work. Section 101 of the Copyright Act defines a work-made-for-hire as:
“a work prepared by an employee within the scope of his or her employment or b a work specially ordered or commissioned for use
(1) as a contribution to a collective work,
(2) as a part of a motion picture or other audiovisual work,
(3) as a translation,
(4) as a supplementary work,
(5) as a compilation,
(6) as an instructional text,
(7) as a test,
(8) as answer material for a test, or
(9) as an atlas,
if the parties expressly agree in a written instrument signed by them that the work shall be considered a work made for hire.”
Determining what a work-made-for-hire can be complex, but for our purposes, let’s assume you’ve about to enter into such an arrangement. What are some tips that can help you?
  1. Negotiate a kill fee (if applicable). If the agreement is with your employer, you may not be able to do this, but if it’s with an individual, negotiate a fee if the project doesn’t come to fruition.
  2. Negotiate a fee - Try to negotiate a fee paid upon signing the agreement and once your work is accepted.
  3. Negotiate revisions. Negotiate time to revise the work if the individual or entity doesn’t accept it. 30-60 days is the norm.
  4. Negotiate Employment Status. Make sure to define your employment status as an independent contractor. If not, many states may infer an employment relationship, where you may have to deduct taxes, pay workers’ compensation insurance, and make other employer-employee accommodations.
Amazon and Big 5 Publishers Attempt to Dismiss Antitrust Lawsuit
Earlier this week, attorneys for Amazon and the Big 5 publishers filed a motion to dismiss a potential class-action lawsuit alleging price fixing. The complaint accuses Amazon and the big 5 of illegal price discrimination, but in the motion to dismiss, Amazon and big 5 refuted that claim claiming there is no illegal agreement to fix or restrain prices. The publishers also claim that there is no conspiracy between the publishers, no evidence of illegal collusion, and bargaining for low print book prices is good for business and consumers.
The lawsuit was initially filed in March 2021.
Case Law: Fifth Circuit Dismisses Copyright Infringement Suit By Publisher
On September 8th, 2021 the Fifth Circuit Court of Appeals dismissed an appeal asserting copyright infringement for lack of jurisdiction. Michael Bynum and his publishing company sued Texas A&M University and its employees after they published a part of Bynum’s forthcoming book about the “12th Man” without Bynum’s permission. A Texas A&M employee, Brad Marquardt, motioned to dismiss the claims because he claimed the university had qualified immunity from being sued. The district court denied the motion, and Marquet later motioned for summary judgment, which the district court also denied.
On appeal, Marquardt argued that he and the university are entitled to qualified immunity because Bynum could not prove that Marquardt violated their statutory right—that is, the plaintiffs could not show that they owned the copyright to the book at the time of the alleged violation. However, the court stated that Bynum’s qualified immunity appeal was not timely and the Fifth Circuit therefore did not have jurisdiction to hear the case.
Contact Us
If you have any questions, don’t hesitate to reach out: jperry@josephperrylaw.com
Disclaimer: This newsletter is meant for informational purposes only and is not meant to be, nor construed as, legal advice. If you have a legal issue or question, reach out to an attorney near you.
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