NO. 15-1234__________________________________________________________________ 

IN THE UNITED STATES COURT OF APPEALSFOR THE SEVENTH CIRCUIT

__________________________________________________________________ 

YUSEF LEEPlaintiff-Appellee/Cross-Appellant

 versus

 HOOSIER STATE UNIVERSITY

Defendant-Appellant/Cross-Appellee 

ON APPEAL FROM THE UNITED STATES DISTRICT COURTFOR THE CENTRAL DISTRICT OF INDIANA

The Honorable Gretchen GoodeCivil Action No. 14-CV-6771-GOG

________________________________________________________________ 

ORIGINAL BRIEF ON BEHALF OF*HOOSIER STATE UNIVERSITY*

*DEFENDANT-APPELLANT/CROSS-APPELLEE*________________________________________________________________ 

Kyle Montrose11 South Main StreetRedtown, Indiana 45056317-748-7658Counsel for Hoosier State University

Disclosure Statement 

The undersigned counsel of record certifies that the following listed persons have

an interest in the outcome of this case. These representations are made in order

that the judges of this Court may evaluate possible disqualification or recusal.

1. Yusef Lee 2. Hoosier State University 3. Dolores Wexner 

Kyle Montrose

Kyle MontroseCounsel for Hoosier State University

2

Table of ContentsPage :

 Disclosure Statement.................................................................................................2 Table of Contents.......................................................................................................3 Table of Authorities...................................................................................................5 Jurisdictional Statement...………..…………………………………………………8 Issues Presented for Review………………………………………………………..9 Statement of the Case……………………………………………………………..10 Summary of the Argument………………………………………………………..13 Argument……………………………………………………………………..…...15 

Standard of Review.....……………………………..………………………15

I. The trial court correctly held no teacher exception to the Copyright Act of 1976. ………………………………………........15

A. Because a federal statute, silent regarding an exception to, is in direct conflict with a common law exception, the common law teacher exception is eliminated with the enactment of the Copyright Act of 1976.…………………….................................................................16

B. A teacher exception violates hiring concerns of universities and impedes academic progression, both valuable policy concerns appropriate for modern times..........18

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II. The trial court erred in holding the work done is outside the scope of employment because the work for hire is the kind hired to perform, is created within time and space limits of employment, and motivated by a purpose to serve the employer.…………………………………………............................................21

A. Lee manifests understanding of requirements implicit to a broad employment contract and writes the work in the same manner as others acknowledged as for hire, and thus, does the kind of work employed to perform.………………….....................................................................22

B. The work-for-hire doctrine may not be avoided by creating the work outside limits of time and space when found of the kind. …………....................................................25

C. Because appreciable motivation is present when a work for hire satisfies an employer’s goals, Lee’s work creation with intent to publish and further career placement is motivated by a purpose to serve.………………………..............................................................27

Conclusion.………………………………………………………………………..30 Certificate of Compliance…………………………………………………………31 Certificate of Service...……………………………………………………………32 

4

Table of AuthoritiesPage(s) :

Supreme Court Cases:

Alaska Airlines, Inc. v. Brock 480 U.S. 678 (1987)………………………………………………..16, 17, 18

Cmty. for Creative Non-Violence v. Reid490 U.S. 730 (1989)……………………………………………………18, 21

Pasquantino v. U.S.544 U.S. 349 (2005)……………………………………………………16, 17

Cases:

Avtec Sys. v. Peiffer21 F.3d 568 (4th Cir. 1994)………………………………………………...27

Beech v. Hercules Drilling Co., L.L.C. 691 F.3d 566, 569 (5th Cir. 2012) …………………………………………15

DeLee v. City of Plymouth, Ind., 773 F.3d 172, 174 (7th Cir. 2014) …………………………………………15

Frey v. EPA,403 F.3d 828 (7th Cir. 2005) ………………………………………………15

Hays v. Sony Corp. of Am.847 F.2d 412 (7th Cir. 1988)……………………………………………….17

Martin v. City of Indianapolis.982 F. Supp. 625 (S.D. Ind. 1997)...…………………………………..passim

Molinelli-Freytes v. Univ. of P.R. 792 F. Supp. 2d 164 (D.P.R. 2010)…………………………………….17, 19

Pittsburg State Univ. v. Kan. Bd. of Regents122 P.3d 336 (Kan. 2005)………………………………………………….17

U.S. Auto Parts Network, Inc. v. Parts Geek, LLC.

5

692 F.3d 1009 (9th Cir. 2012)…………………………………………passim

Roop v. Lincoln Coll.803 F. Supp. 2d 926 (S.D. Ill. 2011)…………………………………..passim

Sherrill v. Grieves 20 C.O. Bull. 675 (D.C. 1929)……………………………………………..15

Weinstein v. Univ. of Ill.811 F.2d 1091 (7th Cir. 1987)…………………………………………passim

Statutes:

17 U.S.C. § 101 (1)..…………………………………………………………..18, 21

17 U.S.C. § 201 (b)………………………………………………………………..21

28 U.S.C. § 1291…………………………………………………………………...8

28 U.S.C. § 1331…………………………………………………………………...8

28 U.S.C. § 2201…………………………………………………………………...8

28 U.S.C. § 2202…………………………………………………………………...8

Rules:

Fed. R. Civ. P. 4 (a)………………………………………………………………...8

Fed. R. App. P. 32 (a) (5)…………………………………………………………31

Fed. R. App. P. 32 (a) (6)…………………………………………………………31

Fed. R. App. P. 32 (a) (7) (B)……………………………………………………..31

Other:

Melville B. Nimmer, Nimmer on Copyright § 5.03 (B)(1)(b)(i) (2014)…….passim

William F. Patry, Patry on Copyright § 5:71 (West 2015)…………………..passim

6

William F. Patry, Patry on Copyright § 5:69 (West 2015)……………………….27

Restatement (Second) of Agency § 228 (1958)…………………………………..21

Restatement (Second) of Agency § 235 cmt. a (1958)…...........…………………27

7

Jurisdictional Statement 

Jurisdiction of the District Court over this matter arose under 28 U.S.C. §§ 1331,

2201, and 2202 as a civil matter arising under federal copyright law, section 101, et

seq., of Title 17 of the U.S. Code. Jurisdiction of this Court is invoked under 28

U.S.C. § 1291, as an appeal from a final judgment of the District Court granting a

motion for summary judgment rendered on December 29, 2014. Notice of appeal

was timely filed in accordance with Rule 4(a) of the Federal Rules of Appellate

Procedure on January 5, 2015.

8

Statement of the Case

In May of 2013, Hoosier State, a non-profit university, hired a Visiting

Assistant Professor (VAP) Yusef Lee for a two-year term. (J.A. at 14.) Hoosier

State’s VAP program is a charitable way to facilitate the transfer of those in legal

practice who wish to begin a career in academia. (Id.) The program is mutually

beneficial, allowing the VAP experience and support in the job market, while

increasing the University’s prestige in the academic community. (J.A. at 15, 17.)

The VAP is “expected to actively engage” in the functioning of the law school,

beyond teaching a few courses. (J.A. at 11, 17.) Required engagement includes

creation of publishable academic works for hire. (J.A. at 15.) Publishing one

academic work for hire per year keeps an academic competitive in the post-VAP

job market. (Id.) Inclusion of a star footnote in published articles, an understood

academic norm, benefits Hoosier State through institutional association. (Id.) The

VAP’s published works for hire and latter career placement both function to raise

the University’s profile in the academic community. (Id.)

During his first year as a VAP, pursuant to the satisfaction of employment

obligations, Lee wrote a work-for-hire manuscript entitled, “A Lunar Minefield:

An Overview of Mineral Rights on the Moon.” (J.A. at 7.) Lee states the

manuscript was chiefly created through use of Hoosier State’s time and resources,

but some reading and editing occurred at his home. (J.A. at 8.) The University’s

9

resources that Lee used include writing workshops, research accounts, printing

facilities, and faculty mentorship. (Id.) After submission of his manuscript to

faculty members for review and presenting for thirty-minutes on the topic, the

Dean of the law school expressed her approval of the manuscript. (Id.) Dean

Wexner hand-selected the work to be published in the Hoosier State University

Law Journal. (J.A. at 15.)

Unfortunately, rather than showing appreciation for the selection of his

manuscript, Lee claims he did not create the work for hire for his employer’s law

journal, but rather for publication in another law school’s journal. (J.A. at 8.)

Published exposure in a prestigious law journal was hoped to help Lee secure

tenure-track employment at another university. (Id.) Only after the work was

complete did Lee confusedly claim complete ownership of the work for hire. (J.A.

at 16.) Lee’s claim is incorrect as the work for hire was completed within the

scope of employment, pursuant to a broad and discretionary employment contract.

Hoosier State University retains copyright ownership. (Id.) Furthermore, no

teacher exception to the Copyright Act of 1976 divests this ownership. (J.A. at 4,

20.) Lee filed a complaint to the United States District Court for the Central

District of Indiana, seeking declaratory judgment pronouncing him the sole owner

of a manuscript he created while employed by Hoosier State. (J.A. at 1-3.) Lee

and Hoosier State submitted cross motions for summary judgment. (J.A. at 6, 13,

10

18.) At trial, the District Court found no teacher exception to the Copyright Act of

1976, but granted Lee’s motion for summary judgment, holding the work was

outside the scope of Lee’s employment. (J.A. at 19-22.) This appeal is brought by

Hoosier State University, praying the Court affirm the ruling of no teacher

exception and reverse in part; finding the work for hire is created within the scope

of Lee’s employment with Hoosier State University (J.A. at 23.)

11

Summary of the Argument

Hoosier State University hired Yusef Lee as a Visiting Assistant Professor

(VAP). Pursuant to his employment contract, Lee wrote an academic manuscript

within the scope of his employment, as work for hire. According to the Copyright

Act of 1976, Hoosier State owns copyright to the work. Lee contests their right to

publish it. The trial court correctly held no common law teacher exception exists

to the Copyright Act of 1976. This Court should reverse the trial court’s holding

and find the work for hire created within the scope of Lee’s employment.

There is no teacher exception to the Copyright Act of 1976. The Supreme

Court has ruled that subsequent legislative action, speaking directly to a question

addressed by common law, eliminates the common law. The Supreme Court has

also interpreted Congressional silence to mean literal silence and not acceptance of

former law. When Congress passed the Copyright Act of 1976, explicitly

excluding any teacher exception, the common law basis is legislatively eliminated.

There is no teacher exception to the Copyright Act of 1976 so a written work

for hire, created within the scope of employment, vests ownership in the employer.

A work is created within the scope of employment when it is the kind of work

employed to perform, created within the time and space limits, and by at least

appreciable motivation of a purpose to serve the employer. Courts evaluate the

kind of work employed to perform by considering the contract, manifestations of

12

the employee, and manner of completion. Academic employment contracts are

broad. Courts interpret broad contracts by considering the totality of the

circumstances and intent of the parties. Hoosier State employs academics,

intending to benefit from their works for hire. Lee manifests understanding of his

employment obligations by his actions while employed. The manner of Lee’s

work completion is also the same as others for hire. Writing academic works is the

kind of work Hoosier State hired Lee to perform. When and where Lee created the

work is not dispositive when of the kind. A party may not avoid the work-for-hire

doctrine by preparing work outside limits of time and space. Lastly, the work only

has to be created with appreciable motivation to serve the employer. Lee, hoping

to aid himself secure prestigious career placement, created the work with intention

to publish. Academic publishing mandates inclusion of a star footnote. Both the

star footnote and Lee’s latter career placement, benefit Hoosier State through

institutional association. The Dean of Hoosier State University affirms these are

both valuable goals of the VAP program. Lee is appreciably motivated by a

purpose to serve Hoosier State. The work for hire was created within the scope of

employment and no common law teacher exception exists to divest Hoosier State’s

ownership. This Court should affirm in part the ruling of no teacher exception and

find the work for hire created within the scope of employment.

13

Argument

Standard of Review

This Court reviews a district court’s grant of summary judgment de novo,

construing all facts and reasonable inferences in favor of the nonmoving party.

See, e.g., DeLee v. City of Plymouth, Ind., 773 F.3d 172, 174 (7th Cir. 2014)

(applying de novo standard to district court’s ruling on cross-motions for summary

judgment). The de novo standard is appropriate for reviewing rulings on statutory

interpretation, as well as rulings on scope of employment that turn on legal

conclusions rather than factual disputes. See Beech v. Hercules Drilling Co.,

L.L.C., 691 F.3d 566, 569 (5th Cir. 2012); Frey v. EPA, 403 F.3d 828, 833 (7th

Cir. 2005).

I. The trial court correctly held no teacher exception to the Copyright Act of 1976.

Courts rarely upheld a teacher exception. In the few instances an exception

was allowed, it secured lectures and class materials, not manuscripts or academic

articles for publication. For instance, nearly a century ago, a court presiding upon

a bill of equity, chose to enjoin use of a teacher’s pamphlet made available to

pupils by the employer’s “printery.” Sherrill v. Grieves, 20 C.O. Bull. 675, 687

(D.C. 1929). Long since, the climate of academic employment changed and

university’s interest in the ownership of academic works greatly expanded. The

legislature willingly followed suit through enactment of the Copyright Act of 1976.

14

At bottom, through its sparse existence, a teacher exception was never a blanket

rule allowing academic employees copyright ownership of all works created for

hire.

A. Any common law teacher exception was eliminated with the enactment of the Copyright Act of 1976 because a federal statute, silent regarding an exception, is in direct conflict with a common law exception.

The trial court correctly held no teacher exception to the Copyright Act of

1976. In instances where subsequent legislation directly conflicts a question

addressed by common law, the common law is eliminated. Pasquantino v. U.S.,

544 U.S. 349, 359 (2005); see William F. Patry, Patry on Copyright § 5:71 (West

2015). Furthermore, courts apply a rigid rule of textual understanding when

interpreting federal statutes. Congressional silence in legislation is merely silence

and cannot be interpreted any other way. Alaska Airlines, Inc. v. Brock, 480 U.S.

678 (1987).

When a federal statute conflicts with common law, the Supreme Court has

held the common law conclusion eliminated. Pasquantino, 544 U.S. at 359. In a

case regarding the federal wire fraud statute, alcohol smugglers were estopped

from using common law revenue to bar enforcement of foreign tax law. Id. at 368-

72. Respected treatises use the logic in Pasquantino, confirming a common law

exception is eliminated as in direct conflict with the purview of a federal statute.

Patry, supra, § 5:71; Nimmer, § 5.03 (B)(1)(b)(i). Conflict arises, as the Supreme

15

Court held Congressional silence could not be interpreted another way. Alaska

Airlines, 480 U.S. at 686. When addressing the structure of the Airline

Deregulation Act, absence of a severability clause was Congressional silence and

“Congress’ silence is just that, silence.” Id. at 686.

Lee relies on a common law principle, promulgated before and in direct

conflict with the enactment of the federal Copyright Act of 1976. The conflict

arises between where the Act vests ownership in one party and the common law

vests ownership in another. The Copyright Act of 1976 speaks directly to the

question of a common law teacher exception and when silent creates a conflict,

eliminating the common law. See Pasquantino, 544 U.S. at 359. Many courts

have reliably followed precedent when determining a common law teacher

exception, though dubious if ever existed, definitely perished with the enactment of

the Copyright Act of 1976. See, e.g., Pittsburg State Univ. v. Kan. Bd. of Regents,

122 P.3d 336 (Kan 2005); Mollinelli-Freytes v. Univ. of P.R., 792 F. Supp. 2d 164

(D.P.R. 2010).

Courts acknowledging a teacher exception are rare and express their opinion

entirely through dicta. See Patry, supra, §5:71, discussing dicta in Hays v. Sony

Corp. of Am., 847 F.2d 412 (7th Cir. 1988). For instance, Hays, a case regarding a

high school teacher’s word processor manual, is not dispositive or relevant

precedent as only speaking on a teacher exception through dicta. Hays v. Sony

16

Corp. of Am., 847 F.2d 412 (7th Cir. 1988). Also, Alaska Airlines exposes a direct

contradiction by binding precedent with regarding the dicta in Hays. Alaska

Airlines, 480 U.S. at 686. Hays, 847 F.2d at 416-17. Similar to Alaska Airlines, the

Copyright Act of 1976 includes no text regarding a teacher exception to the work-

for-hire doctrine, although other portions of the Act do so when an exception is

meant. 17 U.S.C. § 101 (1) (2012); see Cmty. for Creative Non-Violence v. Reid,

490 U.S. 730, 748-49 (1989). The Supreme Court clearly instructs that

Congressional silence cannot be interpreted as acceptance of former common law,

but is merely silence. Alaska Airlines, 480 U.S. at 686. Following this

interpretation, silence indicates the words of the legislature exist as they are

intended to be. Alaska Airlines, 480 U.S. at 686. Congress passed the Copyright

Act of 1976 without mention of a teacher exception; judicial inclusion of an absent

exception may be seen as a form of judicial legislation. Patry, supra, § 5:71. The

trial court correctly concluded the federal Copyright Act of 1976 eliminates a

common law teacher exception by silence in statutory language.

B. A teacher exception violates hiring concerns of universities and impedes academic progression, both valuable policy concerns appropriate for modern times.

A ruling on the facts presented must be made in light of greater policy

implications to interested parties. Even where facts lead to sympathy for one party,

courts consider the precedential effect to understand the broader implications of a

17

specific ruling. An exception to copyright ownership, specially tailored for

teachers and academics, would have a striking effect on educational institutions.

Universities have a large interest in the ownership of their academics’ work for

hire. Molinelli-Freytes, 792 F. Supp. at 171-72. Denial of work-for-hire

ownership would drastically change the climate of academia, dis-incentivizing

university hiring practices and impeding academic progression.

The allowance of a teacher exception would undermine university hiring

practices and impede academic progression. Contemporary universities frequently

include contract clauses and maintain policies dictating ownership of works for

hire. Molinelli-Freytes, 792 F. Supp. at 172; Weinstein v. Univ. of Ill., 811 F.2d

1090 (7th Cir. 1987); see also, Patry, supra, § 5:71. Ownership allows universities

to hire academics under conditions otherwise fiscally irresponsible in any other

industry. Were a teacher exception to govern these relationships, the result would

be catastrophic for academic progression. A teacher exception would further a

“chilling” effect as universities would be dis-incentivized from hiring academics to

conduct exploratory works on their payroll. Not only lowering employment rates,

but forcing universities to reconsider their ability to function as research

institutions.

Non-profit universities take fiscal and reputational risks when hiring

fledgling academics to instruct students and participate in their collegiate

18

atmosphere. A benefit universities receive from such a tentative relationship is

copyright ownership of their academics’ work for hire. (J.A. at 15.) Ownership

allows the university freedom to publish without dispute. Legal disputes over

copyright can be expensive, so it is in the non-profit’s best interest to avoid them.

Furthermore, it is only natural that more disputes will arise when works are of high

quality. Therefore, high quality works will be tied up in litigation and the benefit

will be unavailable to take advantage of. This is against a university’s interest and

would detract from the ability to take the risk of hiring young academics, impeding

academic progression.

Hoosier State University gratuitously selected Lee to be their risk for a two-

year term. (J.A. at 14-15.) The benefit to be realized by the University was

advancement of their brand through academic works. (J.A. at 14-15, 17.) While

the University expected to publish Lee’s work for hire, they were forced to enter a

legal dispute to determine ownership. (J.A. at 1, 16.) Knowledge of a valid

teacher exception would deter Hoosier State University from hiring any VAP in

the capacity it did. Indeed, it would deter Hoosier State, and other universities

similarly situated, from functioning in a research capacity all together.

Consequently, judicial recognition of a teacher exception would have a profound

effect. Academics would no longer have ability to conduct research for

publication, impeding academic progression. Policy concerns backing the scant

19

existence of a teacher exception are no longer applicable in modern times.

Molinelli-Freytes, 792 F. Supp. at 172. The trial court correctly ruled in favor of

university hiring and academic progression by holding no teacher exception; a

federal statute, silent regarding an exception is in direct conflict with a common

law exception and therefore preempts it.

II. The trial court erred in holding the work done is outside the scope of employment because the work for hire is the kind hired to perform, is created within time and space limits of employment, and motivated by a purpose to serve the employer.

Copyright ownership of a work made for hire vests in the employer,

providing ownership of “all of the rights,” unless the parties have “expressly

agreed otherwise” in a written agreement. 17 U.S.C. § 201(b) (2012). A work

made for hire is defined as “a work prepared by an employee within the scope of

his or her employment.” Id. §101 (1) (2012). Whether work is done in the scope

of employment, is based on principles of common law agency. Cmty. for Creative

Non-Violence v. Reid, 490 U.S. 730, 740-41 (1989). Work is within the scope of

employment when it (A) is of the kind employed to perform, (B) occurs

substantially within the authorized time and space limits, and (C) is actuated, at

least in part, by a purpose to serve. Restatement (Second) of Agency § 228 (1958);

see also U.S. Auto Parts Network, Inc. v. Parts Geek, LLC, 692 F.3d 1009, 1015

(9th Cir. 2012); Roop v. Lincoln Coll., 802 F. Supp. 2d 926, 936 (S.D. Ill. 2011).

Courts interpret the requirements as conjunctive to prove the scope of an

20

employee’s work. Melville B. Nimmer, Nimmer on Copyright § 5.03 (B)(1)(b)(i)

(2014). Lee’s manuscript is a work for hire created within the scope of his

employment.

A. The manuscript was the kind of work Lee was employed to perform because he manifested understanding of requirements implicit to broad employment contracts and wrote the work in the same manner as others acknowledge as for hire.

The trial court erred in holding Lee’s academic manuscript was not the kind

Hoosier State University employed him to create. Courts apply a flexible rule with

regard to kind of work, considering the totality of circumstances. Courts determine

what kind of work an employee is hired to perform by evaluating the employment

contract, manifestations showing an employee understood the requirements, and an

employee’s manner of completion. See Weinstein v. Univ. of Ill., 811 F.2d 1091

(7th Cir. 1987); Martin v. City of Ind., 982 F. Supp. 625 (S.D. Ind. 1997), aff’d,

192 F.3d 608 (7th Cir. 1999); Roop v. Lincoln Coll., 803 F. Supp. 2d 926 (S.D. Ill.

2011). Respected treatises state the concept of “publish or perish,” means the

creation of publishable works is integral to any academic’s duties, concluding most

academic works are the kind employed to perform. Nimmer, supra, § 5.03 (B)(1)

(b)(i).

The nature of academic employment obligates a broad contract. Specific

aspects of topic, deadline, style, and general involvement in any university, are in

constant ebb and flow; universities simply cannot be held to the four corners of

21

their employment contracts. Courts interpret broad contracts by considering the

intent of the parties.

Courts hold that an employee is doing the kind of work he or she was hired

to perform if the employee exhibits an understanding that the work was required

even if it was not explicitly in the employment contract. E.g., Roop v. Lincoln

Coll., 803 F. Supp. 2d 926; Weinstein v. Univ. of Ill., 811 F.2d 1091. In Roop,

Lincoln College’s coordinator of a certificate program created bachelor degree

curricula. Roop, 803 F. Supp. 2d at 929. At the time the curricula went into effect,

plaintiff was no longer an employee. Id. The court granted Lincoln College’s

motion for summary judgment over the plaintiff’s contentions of copyright

registration. Id. at 938. The plaintiff’s manifestations determined she understood

the creation of academic materials was the kind of work she was hired to complete.

Id. at 936. The court in Weinstein extended further, stating the Copyright Act of

1976 is broad enough to encompass every academic work. Weinstein, 811 F.2d at

1094 (lack of publication is adequate justification for termination). Respected

treatises affirm the Weinstein interpretation, showing the academic community

accepts and helped draft the statute’s purview. Patry, supra, § 5:71.

Kind of work has also been held when work is created in the same manner as

other works acknowledged for hire. Martin v. City of Indianapolis at 634-35. In

Martin, an employee of a metal fabricator created a large sculpture. Id. at 628.

22

The employee’s normal role was translating customer designs into a form

appropriate for metal, the construction of which was done by other employees. Id.

at 634. In the case of the sculpture, the employee designed and constructed the

entire thing himself with limited help. Id. The employee’s function was normally

only part of the overall completion, so creation of an entire work was not the kind

of work employed to perform. Id.

Hoosier State University hired Lee as a full-time employee to teach agreed-

upon courses and engage in the functioning of the law school. (J.A. at 11-12, 17.)

The job posting describes the functions as attending faculty-writing workshops,

where research and works are shared and presented among other activities. (J.A. at

17.) The contract states resources are provided for conducting research,

understood pursuant to drafting works for hire. (J.A. at 11-12.) Lee used all the

resources provided to him while drafting the manuscript. (J.A. at 8.) Indeed, he

sent a copy of his manuscript to the entire faculty, pitched his idea to an academic

audience for thirty minutes, did all research through accounts provided by the

University, and engaged in writing workshops. (J.A. at 8.) These actions taken by

Lee are exactly the kind of work Hoosier State hired him to perform, pursuant to

the creation a work for hire. Akin to Roop, Lee’s actions while employed manifest

his understanding of employment requirements. Roop, 803 F. Supp. 2d at 936.

The contract broadly states these requirements, but Lee’s actions show he

23

understood the required means provided were in place to facilitate creation of an

academic work for hire.

Like many academics, the way a VAP works is largely discretionary, solo,

and unregulated. Just as the contract allows Lee broad discretion with regard to

classroom materials or projects assigned to students, no parameters exist for the

work for hire. (J.A. at 11-12.) Merely, akin to Weinstein, as an academic, Lee

should publish articles or perish, to remain competitive in the market for post-VAP

position. (J.A. at 15.) Weinstein, 811 F.2d at 1094. Furthermore, though Lee is

hired to be a team member of the faculty, his day-to-day conduct is companionless.

Therefore, analogous to Martin, when Lee chose the academic topic and completed

the project alone, without instruction, he was not straying from the normal manner

of work completion. Martin, 982 F. Supp. at 634-35. Lee, an academic of Hoosier

State University, was hired to teach and engage in academia throughout the law

school. (J.A. at 11-12, 17.) Creation of publishable works for hire is inherently

part and parcel of these employment duties in academia. Nimmer, supra, § 5.03

(B)(1)(b)(i). The trial court erred in holding the work was not the kind Lee was

employed to perform.

B. When kind of work is found the work-for-hire doctrine may not be avoided by creating the work outside limits of time and space.

The trial court erred by not affirmatively stating the work was done within

limits of time and space. When like kind is found, a party may not avoid the work-

24

for-hire doctrine by preparing the work during non-working hours. Martin, 982 F.

Supp. at 634. This is especially appropriate for occupations with little structure.

U.S. Auto Parts, 692 F.3d at 1018.

When an employer does not enforce structured working hours or specify a

location for work completion, the scope of time and space is broadened. Id. In

U.S. Auto Parts, plaintiff worked for a small informal business that did not

differentiate between work hours and off hours. Id. The plaintiff’s employer also

did not enforce a location for work completion, allowing work to be done at the

employees’ discretion. Id. The court followed precedent putting little weight on

time and space limits because the employee’s work was of the kind. Id.

Furthermore, even if both parties to an ownership dispute agreed the work was

substantially done beyond the limits of time and space, it is not dispositive.

Martin, 982 F. Supp. at 634. Many courts affirm the work-for-hire doctrine cannot

be avoided by time and location of completion. E.g., U.S. Auto Parts, 692 F.3d at

1018; Martin, 982 F. Supp. At 634.

In the instant case, Lee concedes to have done research and writing in his

Hoosier State University office. (J.A. at 7-8.) Where Lee contends to have

completed reading and editing outside the formal bounds of work time and office

space, it is irrelevant when of the kind employed to perform. (J.A. at 8.) Martin,

982 F. Supp. at 634. The nature of Lee’s employment is such that attendance in his

25

office is not required, significantly broadening the scope of time and space. (J.A.

at 8, 11, 17.) U.S. Auto Parts, 692 F.3d at 1018. The trial court erred by not

affirmatively stating the work was done within the time and space limits of Lee’s

employment with Hoosier State University.

C. Lee created the manuscript with motivation to serve his employer because his desire to publish and further career placement benefits Hoosier State University.

The trial court erred by holding the work was not motivated, at least in part,

by a purpose to serve Hoosier State University’s goals. The employee’s state of

mind is a major factor when determining motivation. Martin, 982 F. Supp. At 634.

See also Restatement (Second) of Agency § 235 cmt. a (1958). The employee only

has to be “appreciably” motivated by a desire to further the employer’s goals and

serve their needs. Avtec Sys. v. Peiffer, 21 F.3d 568, 572 (4th Cir. 1994). Martin,

982 F. Supp. at 634. See also William F. Patry, Patry on Copyright § 5:69 (West,

2015), discussing Avtec Sys. v. Peiffer, 1995 U.S. App. LEXIS 25901, *14-16. A

low bar, the rule only requires some motivation toward a purpose to serve.

An employee, who works on a project for hire with the mindset of aiding the

employer, has motivation of a purpose to serve. U.S. Auto Parts, 692 F.3d at 1018-

19. In U.S. Auto Parts, the employee created software systems to aid the

distribution needs of his employer. Id. at 1012. The original version was

specifically requested, but later versions were created and modified on the

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employee’s own impetus, with some sporadic supervision. Id. The court found the

creation of un-requested versions was motivated at least in part by a purpose to

serve the employer, providing the employer with something needed. Id. at 1018-

19.

Further, an employee working to promote the goals of an employer is

appreciably motivated by a purpose to serve. Martin, 982 F. Supp. at 634-35. The

court in Martin held the work was not created to promote goals of the employer,

but only as a personal hobby. Id. Had the plaintiff advanced advertisement or

commercial interests, created the work for compensation from the employer, or not

been an avid artist before the creation of the work, appreciable motivation would

have been found. Id.

Lee did not write the manuscript as a personal hobby, but rather to further

his career goals. (J.A. at 7-8.) Lee intended to publish the manuscript in a

prestigious law journal other than the Hoosier State Law Journal. (J.A. at 8.) He

hoped to aid his tenure-track career placement following his VAP term by gaining

exposure in a prestigious journal. (J.A. at 8-10.) However, his intended journal of

publication does not indicate a lack of motivation to serve Hoosier State. See U.S.

Auto Parts, 692 F.3d 1009. Dean Wexner states career placement of the VAP is

“beneficial,” spreading the brand of the University and is a flagship goal of the

program. (J.A. at 15-16.) Furthermore, the understood norm in academia is to

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include a star footnote, indicating the author’s affiliation with a university. (J.A. at

15-16.) Consequently, it does not matter in which journal Lee intended to publish;

the star footnote would work to further the organizational goal of spreading the

brand of Hoosier State University. (J.A. 15-16.) Lee’s state of mind when

completing the manuscript was appropriately disposed to aid his employer spread

their brand, and achieves the goals of the VAP program and Hoosier State. U.S.

Auto Parts, 692 F.3d at 1018-19. Analogous to Martin, Lee was not an academic

before working for Hoosier State and was paid for his VAP term. Martin, 982

F.Supp. at 634-35. Where Lee creates a work for hire and satisfies his employer’s

objectives, particularly advertisement and commercial goals, his actions are

“appreciably” motivated by the purpose to serve. Id. The trial court erred in

holding the manuscript was not motivated by a purpose to serve Hoosier State

University. The trial court erred in holding the work for hire was not created

within the scope of employment, vesting copyright ownership in Hoosier State

University.

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Conclusion 

For the foregoing reasons, Hoosier State University respectfully requests

that this Court affirm in part the judgment of no teacher exception and reverse in

part, find the work for hire created within the scope of employment.

Respectfully submitted,  Kyle Montrose Kyle MontroseCounsel for Hoosier State University 11 South Main StreetRedtown, IN 45056317-748-7658

Date: April 10, 2015

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Certificate of Compliance 

This brief complies with the type-volume limitation of Fed. R. App. P. 32(a)

(7)(B) because this brief contains 5,732 words.

This brief complies with the typeface requirements of Fed. R. App. P. 32(a)

(5) and the type style requirement of Fed. R. App. P. 32(a)(6) because this brief has

been prepared in a proportionally spaced typeface using Microsoft Word in

fourteen point Times New Roman font.

  

Kyle Montrose Kyle MontroseCounsel for Hoosier State University 

Date:  April 10, 2015

30

Certificate of Service 

I hereby certify that one true and correct copy of the Original Brief on

Behalf of Hoosier State University has been served upon the following counsel of

record:

 Sue Yerpanzof

119 E. High StreetHawktown, IN 45056

317-867-5309  

Kyle Montrose Kyle MontroseCounsel for Hoosier State University 

Date:  April 10, 2015

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