Authors: Margo Karasek
At the end of three months, Miss Smith had finished 150 pages. She printed copies of her manuscript and had thirty bound into book format, all at her own expense. She distributed the copies to her students, as gifts, and donated one to the school’s library. For two years nothing else happened with the book—Miss Smith never thought to submit her “little project” to any publishers—until one fortuitous incident changed that fact. Elementary School 1 gained a donor willing to finance the expansion of its meager library. The donor visited the school to look over the school’s reading collection, and Miss Smith’s self-published book caught his attention. He passed the book along to an editor friend of his, who immediately contacted Miss Smith to work out a deal for the book’s national publication. Miss Smith happily agreed. No one, not the donor, the editor, or the book’s publisher, thought it necessary to seek out the school’s permission. Surprisingly, Miss Smith’s little book became a major children’s literary success …
“Who’s going out for beer?” a male voice boomed outside my door and had me stopping smack in the middle of my statement of facts. “Meeting place downstairs!”
Excited screams followed. Doors slammed. Feet rushed. Someone else put on music—Abba’s ultimate hit collection—and joyfully sang along. Apparently, my whole dorm floor had completed Professor Johnson’s brief and was intent on celebrating the fact, loudly.
I covered my ears and tried to refocus on the text. I had three days—a whole weekend with no classes—to complete the brief and I was going to do it, if it killed me. No way did I get this far only to fail now, because I—Tekla Reznar—had actually finished my
Law Review
assignment in time. The very idea still made me smile, as did the memory of me, in the
Law Review
office, handing off the work that very morning.
I owed Markus big time. True to his word, he’d lugged around books and journals, flipped through hundreds of pages, and skimmed thousands of lines of legal jargon for five days straight, with no benefit to himself. More importantly, he didn’t let me slack. No more e-mail breaks or useless web surfing.
The man was a saint.
“Hey, Tekla,” someone slammed a fist into my bedroom door, “party in Jason’s room. You coming?”
“No!” I shouted back. “I’m working.”
But not here. I needed a quiet place. So I collected my laptop and headed for the door.
“Where are you going?” Lauren, a drink in hand and a new guy at her side, called after me from a neighboring dorm’s hallway, music blaring behind her back.
“The library.”
“O
H MY
G
OD, WITH THE BRIEF DONE
, I like have nothing else to do for the whole weekend. Can you believe it?” a blonde chuckled to a group of other blondes standing around my study table.
I glared at them to be quiet, but they didn’t notice.
“Did you hear, Tara and Jonathon hooked up at a party last night? But get this, he was so wasted he doesn’t remember a thing! Serves her right,” the same blonde yakked on.
I searched around for another table, and found none empty. Clusters of students stood, sat or hovered around every table, talking and laughing. It was as if the study lounge had morphed itself into a den of gossip and idle chatter.
The library was definitely out. I dug out my cell phone. Desperate times …
“Hi, Mom. Can I come over? Yes, to Brooklyn.”
U
NDER
S
ECTION 101 OF THE 1976
C
OPYRIGHT
A
CT
a “work made for hire” is one “prepared by the employee within the scope of his or her employment.” Therefore, although normally copyright ownership automatically attaches to a work’s creator or author, a third party’s rights may trump those of the creator or author when the two form an employer-employee relationship. However, who that employee is and what the scope of that employment relationship entails has been narrowly interpreted by courts in the years since the Act’s enactment. For instance, numerous courts have held that academic writing in universities and colleges was not work made for hire, and professors retained the copyrights to their work even if they used their employer’s “paper, copier, secretarial staff, and computer facilities” in the creation of said work.
Weinstein v. University of Illinois;
Hays v. Sony Corp. of Am.
The courts have yet to consider whether teachers at the elementary level retain the same rights, but the judicial trend has clearly been to recognize an overall “teacher exception.” Consequently, Elementary School 1 has no copyright claim to Miss Smith’s book, even if the Court interpreted all the disputed facts in its favor, which it should by no means do …
“Tekla, are you busy? I brought you some food.”
My mother strolled into my old bedroom, a plate overflowing with sandwiches in her hands. She stormed my desk, shoved papers out of the way and flipped open books closed, to make room for her bounty.
I flinched. It would take a good fifteen minutes to reorganize the pages again. No point mentioning that to my mother, for whom more than one opened textbook at a time equaled a mess that needed immediate cleanup.
“
Moooom.
We just ate dinner, like an hour ago. I am
not
hungry.”
My mother tsked. “And that’s why you’re so skinny! With your condition, you need to eat a lot, and often.”
I rolled my eyes. I had no condition, but my mother knew better. She had long ago diagnosed me with an overactive thyroid brought on by stress and nerves. Never mind what the doctors said.
“And you look so anxious,” she said, looking ready to stroke my head.
I was—I was anxious to finish. Now if she would just go away …
My father must have sensed my thoughts, because, miraculously, he materialized behind my mother’s back.
“
Zlotko
,” he said as he caressed my mother’s shoulders. “Leave Tekla alone. She has to do her work.”
E
LEMENTARY
S
CHOOL 1 ARGUES THAT
, under Section 101, it holds the copyright to Miss Smith’s book, and therefore has a right to all its proceeds, because Miss Smith was employed by the school at the time of the book’s writing and undertook the project solely for the purpose of teaching, her enumerated contractual responsibility with the school. (Plaintiff’s Complaint at 2). However, the actual facts of the case belie that assertion. Elementary School 1 employs numerous other third-grade teachers, none of whom have penned any children’s stories as part of their teaching responsibilities. All rely on the school’s library for their classroom reading material and not their own creative endeavors. Elementary School 1 further asserts that it rightfully holds the copyright ownership in Miss Smith’s book because Miss Smith did a significant portion of the work on the book while on school grounds, during school hours, using the school’s supplies and even relying on its students for critical feedback.
Id.
Again, the actual circumstances undermine this legal and factual assertion. Miss Smith completed only a portion of her book while on school grounds, and usually during her breaks when she could undertake any activity she desired. She was under no contractual obligation to perform school-related responsibilities during her free periods. Moreover, while Miss Smith admittedly did engage her students in the creation of the book, that engagement was minimal at best. Students got the benefit of hearing her read her story, but this occupied no real classroom time and students never participated in the actual writing process. Finally, as numerous courts have held, whether or not Miss Smith used any of the school’s supplies is not dispositive of the case …
“Tekla … sorry,” my father apologized as he tiptoed into the room. “But your cell phone is ringing, non-stop. I thought it might be important.” He handed me the phone and crept back out.
I glanced at the display screen.
Xander. Great.
“Yo Tekla,” Xander’s voice whined into my ear. “How come you’re ignoring my e-mails? Dude, like, the story is due on Monday.”
“I know,” I replied as I closed my computer screen. Something told me this would be a long break. “But I told you, I won’t make any corrections if you keep writing that nasty stuff about Gemma.”
“Yo, that was a total joke,” Xander’s voice went up an octave. “I was just doing it to piss her off. And, like, it
was
funny. But, yo, I would never really submit that stuff. Mr. Dandridge would fail me. So can you
please
look at it? Please. I swear I took all the Gemma crap out.”
I stared at the computer then at my wristwatch. It was Saturday evening. I was halfway done with the brief. I had all of Sunday to finish, and I couldn’t avoid Xander’s story anyway.
“Okay,” I said. I’d check it as soon as my own brief was in the bag, so to speak.
“But can you like check it now? We’re going with
Maman
to the country tomorrow, to her editor friend’s house, and, like, you know, I want to be done.”
“Fine,” I sighed. Didn’t we all? Want to be done, that is. But not all of us were so lucky. “Send it over.”
O
NCE UPON A TIME
there were two beagle puppies that lived in a huge doghouse in Manhattan. One puppy was a boy and his name was Der. The second puppy was a girl and her name was Gem. The two puppies had very rich dog parents. Their father, his name was Dior, made dog biscuits and he had lots of dog money. Their mother, her name was Coco, was a big dog model who did commercials for the dog biscuits and she was very well known by dogs all over the world. The puppies really loved their dog parents because they gave them everything they wanted. They had nice collars and nice leashes and really good dog food to eat all the time. They didn’t have to worry about anything, like all those poor dogs living in dog shelters or sometimes even on the street had to. They didn’t have to worry about being put to sleep because no one wanted them, or about being beat up by mean people. But the puppy dogs were still sad because their parents were away a lot and they had to stay in the doghouse alone. This did not make them happy. So the puppy dogs started doing bad things to get attention. Like once they had this huge dog party …
I smiled. Go, Xander! Good for you. Better grammar. Check. Periods. Here. Consistent tenses. Check again. Plot and character development. Present.
Would the story get him into
Horizons
? Maybe not. But it was the first piece of writing Xander had ever completed on his own.
And that had to count for something.
“H
ELLO
?”
“What the hell is this?” a man’s voice screamed at me.
I had made the mistake of picking up my cell phone, again, although I should’ve known better. But the number was unfamiliar and, well, here I was.
“Mr. Lamont?”
“‘They had nice collars and nice leashes and really good dog food to eat all the time.’ What kind of crap are you peddling, Miss Reznar? This is elementary school stuff! Sentences like that will never get Xander into
Horizons
.”
“Ye-yes, w-w-well,” I stammered, trying to get my bearings. Clearly, Mr. Lamont had gotten hold of Xander’s finished story and didn’t like it. “Xander
is
in ninth grade. That’s barely high school. And I thought, for his level, with his writing issues, the story was quite good. You’ll be happy to know,” I said, trying to point out the positives, “that Xander wrote it all on his own, and the work is a huge improvement on what he’s done before. With more practice he can become quite the writer.”
The line went dead quiet, then …
“Are you mocking me, Miss Reznar?” Stephen Lamont hissed.
“Ah, no.” Uh-oh. “It’s just that … ” I began, only to be interrupted mid-sentence.
“Good,” Stephen Lamont’s voice stayed level. “Let me remind you that I hired you to produce results and not to wait until Xander becomes ‘quite the writer’ all on his own. As such, you have two hours to give me something usable, Miss Reznar. Otherwise, you are fired. Terminated. Your services will no longer be needed. Am I making myself clear?”
Before I could answer, the connection went dead.
Stephen Lamont
, I fumed,
had hung up on me. The jerk. The bastard.
And two hours only! He demanded a whole new story—I looked at my watch to confirm the hour—at ten o’clock on a Saturday night. The man was crazy. Inconsiderate. Not to mention unethical. I was a tutor, not a paper peddler. There were academic rules against paying someone to outright do the schoolwork for you, or your son.
But then I felt the color drain from my face.
Fired.
The word echoed in my head. Stephen Lamont hadn’t sounded like he was kidding.
I had never been fired in my life. And the money … I saw the $6,000 paycheck, and all it could purchase, floating away. My childhood bedroom—with its comforting peach walls, frilly bedding and movie star posters—closed in on me. Without the money, it’d become my daily reality. I could, I took a deep breath, deal with that.
Yeah, right. No I couldn’t.
So I searched through my cell’s contact list, for the only person who could help me. She just had to.
Ms. Jacobs.
“Tekla, I was just thinking about you,” she rasped into my ear. “And here you are calling. How are you? How’s everything going?”
“Not too good.” I sat back in my desk chair, relieved to unload the Lamont burden. Ms. Jacobs would deal with it. After all, she had stern rules against cheating. She had said as much. “I’m sorry to be calling so late, but I just spoke with Stephen Lamont, and, well, there’s a problem.”
“Oh, don’t worry about the time,” Ms. Jacobs chortled. “I’m always here for my tutors. Want to make sure you’re all happy, especially my brightest stars.”