Eisenhower Biography Was a Work for Hire Under 1909 Copyright Act

Case: Twentieth Century Fox v. Entertainment Distributing, No. 03-57052, 04-55410, 03-57234 (9th Cir. 11/18/05)

The One Sentence Summary: A copyright infringement verdict for plaintiff Twentieth Century Fox was affirmed where plaintiff owned a valid copyright in an Eisenhower biography that had been created as a work for hire under the 1909 Copyright Act.


Ninth Circuit Holdings:

• Plaintiff owned a valid copyright to an Eisenhower biography which was created as a work for hire. Under the 1909 Copyright Act, an independent contractor can create a work for hire if the work was created at the "instance and expense" of the hiring party.
• The biography was created at the publisher's "instance" because Eisenhower was initially reluctant to write a biography and had to be persuaded.
• The publisher had a sufficient degree of control and supervision over the work to make it a work for hire.
• The work for hire presumption was not rebutted because there was no evidence that Eisenhower intended to own the copyright for his work. A later written agreement providing that Eisenhower assigned his rights in the book to the publisher did not establish that he intended to own the copyright before the assignment.
• The district court did not err in granting attorneys' fees to plaintiff based on success on the copyright claims.