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Whether the work is made for hire if the letter agreement was executed after creation?

Over the course of 55 years, Stanley Kauffmann, who was never employed by TNR, contributed numerous film reviews and other articles to The New Republic magazine. During that time, Kauffmann and TNR took some actions consistent with an understanding that Kauffmann was the author of, and owned the copyrights in, his articles. For example, Kauffmann granted many third‐party licenses to republish his TNR articles without objection from TNR.

However, Kauffmann and TNR took other actions consistent with an understanding that TNR was the author and original owner of the copyrights. For example, TNR transferred to Kauffmann the copyrights in all of his articles appearing in TNR in 1978 and 1979, and Kauffmann at least once solicited permission from TNR to reprint his TNR film reviews in an anthology. With one important exception, Kauffmann and TNR never formalized any understanding about whether Kauffmann’s articles were “works made for hire.”

The exception is a 2004 letter agreement from TNR to Kauffmann (“the 2004 Agreement”). It provided in relevant part: “Our agreement with you has always been an oral understanding… We have… always understood in doing business with you that, in light of our regular monthly compensation arrangement with you, all articles you have written for The New Republic have been ‘works made for hire,’ as that term is defined under the US Copyright laws.” Letter from Leon Wieseltier to Stanley Kauffmann (Mar. 22, 2004). The agreement was signed on behalf of TNR by Wieseltier, then TNR’s literary editor, and shows a check mark on the line marked “Agreed:” above Kauffmann’s signature.

After Kauffmann’s death in 2013, RIT published an anthology of Kauffmann’s film reviews including 44 that had originally been published in TNR in 1999 (“the articles” or “the works”). The anthology, titled The Millennial Critic: Stanley Kauffmann on Film: 1999‐2009, was edited by Robert J. “Bert” Cardullo. Cardullo, a serial plagiarist of writings by Kauffmann and others, misrepresented to RIT that Kauffmann’s will had granted him sole authority to prepare an anthology of Kauffmann’s film reviews. He went so far as to forge a letter purporting to be from counsel for the Estate.

Kauffmann’s estate is the successor owner of Kauffmann’s copyrights. In 2015, the Estate discovered the anthology and sued RIT for copyright infringement. Relying on the 2004 Agreement, which was unearthed from TNR’s files during discovery, RIT sought summary judgment. It contended that the Estate did not own the copyrights because Kauffmann had created the articles in the anthology as works for hire and TNR, not Kauffmann, was therefore the “author” of the articles.

The District Court ruled that the 2004 Agreement “unambiguously” “memorialized in writing a preexisting oral contract, evidently dating back to when Kauffmann started writing for The New Republic in 1958,” that Kauffmann’s contributions to the magazine – including the 44 articles – were created as works for hire. In the District Court’s view, Kauffmann never owned copyrights in the articles and therefore the Estate, his successor in interest, could not maintain an infringement action based upon their inclusion in RIT’s anthology.

The 2004 Agreement was executed five years after the year in which the 44 articles were written. Some Circuits have ruled that an agreement sufficient to establish a work as a “work for hire” must be executed before creation of the work, the other circuit has ruled that in some circumstances a series of writings executed after creation of the works at issue can satisfy the writing requirement of section 101(2). Such writings must “confirm a prior agreement, either explicit or implicit, made before the creation of the work.”

The court ruled that the Kauffmann was and remains the author of the 44 articles, and his Estate, as his successor, is the owner of the copyrights in them. Therefore the judgment of the District Court has been reversed.

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