Authors: Margo Karasek
And then it happened—my very own miracle.
T
HERE HAD BEEN NO HESITATION
on his part once I disclosed.
“Here,” Markus said, handing over his note cards. “These are all the relevant cases summarized. They’re in alphabetical order, so you should have no problems finding them quickly when the judge asks you.”
I eyeballed the stack, and salvation. With the cards I would be able to fake my way through the argument. I remembered enough of the facts from writing the brief, but the relevant law would be a problem, and now here it was, mere inches from my finger tips, alphabetized.
I snatched my hand back.
“Markus, I can’t. I just … can’t.”
And I wouldn’t. And it wasn’t because of Markus’s crush on me; I was pretty certain he would have offered the help if I were Lauren or even Ann. Markus was just that sort of a person, a person always protective of his friends, regardless of their feelings back.
Still, I wouldn’t take the advantage from Markus. But something in me—maybe not the heart he had hoped for, but something close—swelled for Markus. He was genuinely a good man. My mother had been right: Markus would make someone a very good catch.
“Sure you can,” Markus argued, shoving the cards towards me. “I have all this memorized. I brought the cards with me just in case. I really don’t need them, so here.”
“No, it wouldn’t be right,” I said, holding my ground.
And right then, I wanted to hug him. He really was cute, with his soft brown eyes and cupid bow lips. Sweet. And after Julian being so GQ-suave, maybe sweet wasn’t such a bad thing. “I messed up and I deserve to lose, bad. You, on the other hand, have earned a win.”
“Well, sure,” Markus retorted with a grin. “I intend to whoop your ass, but not because you were forced to come unprepared. I want to beat you because I’m better than you when you’re at your best. So please, take. I insist.”
I hesitated.
I wouldn’t. Shouldn’t. But what if Markus was right? His win wouldn’t be as sweet if everyone knew it came not because of his skill, but because of a lazy opponent. Not taking the cards would almost be doing him a disservice.
Yeah, right.
I mentally shook my head.
That last bit was the biggest pile of … justification
manure
I had ever come up with.
Next I would be convincing myself I was actually doing
him
the favor.
Fess up, Tekla
, my conscience lectured. Markus was giving me the biggest gift of the century,
and
was dressing it up to make the taking palatable.
And I sure as hell needed to take it.
I reached for the cards just as the clerk announced the judge.
“Thanks,” I mouthed at my opponent. Markus winked and went to take his place in front of the podium. I sat down at the defense table pondering how I would ever repay him.
And when the judge waved Markus on to speak, I listened to him volley back and forth with the judge.
Markus was great.
“Yes, Your Honor,” my opponent and
friend
was saying, “Elementary School 1 owns a copyright in Miss Smith’s book because she wrote it
for
her students, during mostly school hours and as part of her curriculum—the very definition of a ‘Work for Hire’ according to the
Hays
court.
“And no, Your Honor, the defense,” Markus said, indicating me with a wave of his hand, “cannot claim the teacher exception in this case because courts have construed that exception very narrowly, only to university faculty, and, clearly, as an elementary school teacher, Miss Smith’s work does not fall within its reach. As held in
Manasa v. University of Miami
, for instance, the teacher exception does not apply to the author of a university funding proposal even though the courts have always looked favorably at colleges when applying the exception. That court was clear. The teacher exception applies to professors only. When the work is completed by someone else, the school owns the copyright.”
Manasa?
Damn.
I flipped through Markus’s stash. The man did have his case law memorized. I hadn’t even heard of the case, let alone remembered its full name or holding. Yet Markus had dropped the case’s stats like they were nothing more than the digits of a very familiar telephone number. What was next, the exact citation and index page? I wouldn’t be surprised. Clearly, Markus was blessed with a photographic memory; else, he had slaved for hours cramming the information into his brain. The judge looked equally as impressed.
“Yes, but,” the judge said, questioning, as he leaned into his microphone, “if the Copyright Act and the courts did not anticipate schoolteachers falling under the exception, why does the law call it a ‘teacher exception’ and not the ‘professor exception’?”
Markus straightened. “Your Honor, I am very glad you ask. And, first, let me stress that there is no explicit teacher exception under the Act. In fact, as pointed out by the
Hays
court, it is widely believed the Act abolished the teacher exception entirely. As such, any academic writing is a work made for hire per se, and the copyright always belongs to the employer. So arguably, Miss Smith would have no legal claim in her book’s copyright. However,” Markus held up a finger, “the courts have made clear that such a conclusion would wreak havoc ‘in the settled practices of academic institutions’ and so determined the exception did survive when it concerned professors, but professors only. And since Miss Smith is a schoolteacher, the exception does not apply to her, and, as such, the Court must determine if the book she wrote falls within the scope of a Work for Hire. And, since she wrote it predominantly at the school, with the aid of her students and school supplies, it clearly does.
“Moreover,” Markus crooned, his voice and argument so logical he had everyone listening—including me, his opponent—eating out of his palm, “the
Hays
court provided us with a more straightforward test when determining whether the work in question was a Work for Hire. In excluding professors from the statute, the court reasoned that while a professor’s writing may have been prepared ‘within the scope’ of his employment, it was not ‘prepared ‘
for
’ the educational institution.’ In layman’s terms, a professor who writes a bestselling novel does not write it
for
his freshman writing students. He does not use it as a teaching tool, so it is excluded from the statute. Miss Smith, however, openly wrote her book for her students. Even the defense concedes that the sole purpose behind the book was as a teaching aid for Miss Smith’s students. The book, in short, is nothing more than a very creative lesson plan, and as such, one that was clearly done as a Work for Hire and, consequently, the copyright, and all its attenuating financial proceeds, legally belong to Elementary School 1, my client.”
Shit, shit, shit.
I sat in my seat, unmoving, unwilling to even blink lest the judge see my reaction and, like in poker, figure I was the player with the weaker hand.
But shit. I was screwed. Markus had an honest-to-goodness new legal test he had seemingly pulled out of thin air. Sure, the
Hays
court had mentioned, in passing, something about a work being prepared “for” an employer, but it had never based its decision on that language. I was certain.
I searched through Markus’s case summaries just to make sure.
Yup. I was right.
No mention of the “for” language in the holding.
Still, Markus was ingenious for highlighting the phrase because if law school taught me anything, it was that judges loved those lawyers who gave them easy solutions in their arguments.
And Markus’s proposed test was so simple, so graceful, so straightforward. So effective. What judge wouldn’t love it?
Shit.
“But let’s not stop with just the case law,” Markus went on. He must have sensed victory was imminent because, if sound could move, his voice was about ready to dance a victory jig. “Let’s also analyze policy.”
Policy?
Markus
?
I scowled. Markus was never good at arguing policy, yet he was willing today to tackle what he surely considered my strong suit. Professor Johnson had said as much when he awarded us the argument. Markus excelled with the law, and I favored the facts.
Markus was dead serious about winning.
“A recent
New York Times
article has touched on the repercussions we, as a society, will face when the Court rules in Miss Smith’s favor,” Markus said, and I scrambled to recall what article he could possibly have been referring to.
Fruitlessly.
Because, what with Julian and Xander and Gemma, I had not been following the news. And I should’ve been. It was a lawyer’s responsibility to be current on all the applicable developments. If this were real life and not moot court, my client could sue me for malpractice on that fact alone.
“Teachers are now using the Internet to sell their lesson plans,” Markus continued. “They use school resources to develop material for their public school classrooms and then, without permission and without sharing any of the proceeds with the schools, sell it, for sometimes as much as thousands of dollars, to finance vacations, home renovations and fancy dinners. Some sites record sales of as much as hundreds of thousands of dollars—money that is not going to the schools, where it is desperately needed. The Work for Hire doctrine in the Copyright Act was created to avoid just such situations.” Markus placed his elbow on the podium and rested his chin on his fist, like an old acquaintance about to launch into a lengthy, but comforting, explanation.
“Fashioning lesson plans is an intrinsic part of the teacher’s job,” Markus highlighted, his very posture warning the judge not to interfere. “It is, among other things, what she is paid a salary to do. The law does not permit her to profit a second time from the material—and with good reason. Because what will happen to the profession when most teachers start to rely on a few lesson plans created by others? They won’t need to come up with their own, original material. Creativity and flexibility will go out the window. Teachers will be no more than drones in a classroom, and is that what we as a society really want and need for our children? I would argue not.” Markus shook his head, then paused before starting up again. “And permitting Miss Smith to keep her copyright will set us on just such a course.” He straightened. “Miss Smith wrote her book because she needed a new lesson plan to teach her students reading. She wrote it
for
them, using her employer’s resources. The book, therefore, is clearly a Work for Hire, and the copyright belongs to the school. Thank you.”
Markus walked away from the podium.
He was finished.
Oh, God.
I felt my breakfast rise up to my throat.
It was my turn.
I couldn’t get my legs to stand. My stomach clutched and unclutched, spastically. I was hot, and cold, and could feel the hundreds of eyes behind me boring into my back. The judge in front sat, unmoving, waiting. The sudden quiet in the room roared in my ears like an oncoming avalanche.
How could Markus be finished
already
?
I toddled over to the podium, the cards—
Markus’s
note cards—clasped in my suddenly moist hands. They somehow felt inadequate now.
My mind blanked.
A light on the podium blinked green.
I vaguely recalled the clerk saying green meant go. An orange light would come on when I had thirty seconds left of my five minutes to present, and a red light would indicate the argument was over.
I had to speak. Immediately.
My mouth opened, but I could vocalize nothing.
Think, think, think!
I placed the cards on the podium and put my hands behind me. They curled into fists, my nails biting into the skin.
The sharp pain focused my attention.
I couldn’t just stand there, silent, for the next five minutes.
Thoughts, facts, started slowly coming back to me.
“Ah,” I tried. I would begin with what I remembered and take it from there. “May it please the Court,” I said, my voice booming into the microphone. It clashed with the high-pitched shriek of electronic feedback. I shifted slightly back. “My name is Tekla Reznar, and I represent the defendant, Miss Smith, in this case.”
I looked up at the judge for some sign of displeasure, but found none.
So far, so good.
“When Miss Smith began writing her book she in no way, shape or form thought she was doing something mandated by her teaching contract,” I started, proud that the words now flowed out of me. Hey, this wasn’t so bad. “She took on the project, yes, to partly benefit her students, but mostly because she astutely recognized a need in children’s literature. The school cannot … ”
“But,” the judge cut me off, “under the test set up in
Avtec,
doesn’t the school own the copyright precisely because the book was a children’s book and therefore of the type she was hired to perform, regardless of her intent and whether or not said responsibility was specifically enumerated in her contract?”
Avtec, Avtec.
“Ah,” I raced through Markus’s case summaries and scanned the holding. Thank God the case started with an A. I owed an even greater thanks to Markus for being so neat and organized.
“I’m sorry,” I said, flushing at the delay I had caused. “But, no. Under
Avtec
, the original purpose of the work in question is just one part of a three-part test. Equally as important is whether the work substantially occurred ‘within the authorized time and space limits’ of the job and I would argue that, in the present case, it does not. Miss Smith wrote most of her book while at home and during her free periods at school. Therefore … ”
“But how about
Vanderhurst
?” the judge demanded.
“Uhh … ” I froze.
Vanderhurst
? My luck was clearly over. The judge had moved on from the As.