# Opposition Brief — Easter Seal Society for Crippled Children & Adults of Louisiana, Inc. v. Playboy Enterprises, Inc. > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385019_0945%3A2 ## Record - **Collection:** Supreme Court brief - **Document type:** Opposition Brief - **Published:** January 1, 1988 - **Citation:** 485 U.S. 981 ## Text Supreme Court, U.S. rN ie ee ae \%) VY OCT 23 1987 No. 87-482 JOSEPH E SPANIOL, JR. In The pac Supreme Court of the United States October Term, 1987 EASTER SEAL SOCIETY FOR CRIPPLED CHILDREN AND ADULTS OF LOUISIANA, INC., Petitioners, VS. PLAYBOY ENTERPRISKS, INC.,, ef al.. Respondents. ray Vv REPLY TO PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT Ly MF CuHar.es F. igeaasiaes Skye \ __~, BARRA CHURCHILL ae Re = naar C Street, Suite 300 = RK Ky & &"New Orleans, Louisiana 70130 ey Telephone: (504) 523-3565 Attorneys for Defendants- Respondents Greater New Orleans Educational Television Foundation A.R. Curistovicn, JR. Liane C. Kine CuristovicH & KEARNEY Pan American Life Center 601 Poydras Street, Suite 2300 New Orleans, Louisiana 70130 Telephone: (504) 561-5700 Attorneys for Defendants- Respondents Playhoy Enterprises, Inc., et al. COCKLE LAW BRIEF PRINTING CO., (800) 225-6964 or call collect (402) 342-2831 QUESTION PRESENTED FOR REVIEW In what manner did the 1976 Copyright Act change the definition and application of the ‘‘work for hire’’ doc- trine as previously found under the Copyright Act of 1909 and case law arising thereunder? TABLE OF CONTENTS| Page nes, OE TU OO isis ciate 2 ee TREO aS 3 SITTIN: ssinsseciaivilchcshnichsiahnieecineaigkdeaeceleuiegahiasamaaa aaa 3 The Facts of this Case Lead to the Same Result Under any Theory of ‘‘ Work for Hire’? 0. 3 ELLE AAT Se WN Ic) eI 7 i iil TABLE OF AUTHORITIES Page CASES : Aldon Accessories, Ltd. v. Spiegel, Inc., 738 F.2d 548 (2d Cir.) cert. denied, 469 U.S. 982, 105 S.Ct. 387, 83 L.Ed. 2d 321 (1984) .......... 5, 6 Easter Seal Society v. Playboy Enterprises, Inc., et al., 815 F.2d 323 (5th Cir. 1987) ............ 4,6 Easter Seal Society v. Playboy Enterprises, Inc., et al., Civil Action No. 83-39421 (E.D. ona SE rc a ee? SE 5) Graver Tank d& Manufacturing Company v. Linde Air Products Company, 69 S.Ct. 535, 336 U.8. 271, 93 L.Ed. 672 (1949) ____. 6 Tiffany Fine Arts, Inc. v. U.S., 105 8.Ct. 725, 469 U.S. 310, 83 L.Ed. 2d 678 (1985) ................ ree 6 STATUTES: 17 U.S.C. § 101, et seq. (1976) 4 17 U.S.C. § 101(1) (1976) .......... alamaaceiee 4 af Uae, S Pence) (978) Tk. i tavdad besicemtaiel 4,5,6 17 U.S.C. § 204 (1976) ... 6 EASTER SEAL SOCIETY FOR CRIPPLED CHILDREN AND ADULTS OF LOUISIANA, INC. Plaintiff-Petitioner versus PLAYBOY ENTERPRISES, INC., ET AL. Defendants-Respondents ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT RESPONDENTS’ BRIEF IN OPPOSITION Respondents, Greater New Orleans Educational Tele- vision Foundation (‘‘WYES’’)!, Playboy Enterprises, Inc., Playboy Productions, Inc., Playboy Programs, Inc., Play- boy Cable Network, Inc., (collectively ‘‘Playboy’’), Tele- Metropole International, Inc., 120752 Canada, Inc., RSL Films, Ltd., PKO Television, Inc. Rainbow Programming Services, Cox Cable New Orleans, Inc., and Cox Cable of Jefferson, Ine. respectfully submit this Brief in opposition to the Petition for Writ of Certiorari filed herein by Easter Seal Society for Crippled Children and Adults of Louisiana, Ine. (‘‘Society’’). ff) a 1Petitioner’s List of All Parties erroneously denominates respondent Greater New Orleans Educational Television Foun- dation (“WYES”) as simply “Television Foundation, Inc.” (See page ii, entry number 2, of the petition). 1 STATEMENT OF THE CASE WYES, through its unincorporated production divi- sion, contracted with Society to produce a videotape of a Mardi Gras style parade and Dixieland jam session to be aired as a segment of the 1982 National Kaster Seal Telethon. The contract contained no mention of copyright ownership or transfer. WYES provided the director, production crew, technical equipment and expertise; So- ciety supplied the players. The resulting four and one-half hours of uncut field tape was post-produced by WYEKES and edited into a sixteen minute master tape which was delivered to Society and broadcast as part of the telethon. WYKES retained possession of the field tape, using por- tions thereof in its local musical programming. Upon re- quest, WYES also made portions of the field tape avail- able to a Canadian broadcast producer for screening. The Canadian producer allegedly incorporated certain portions of the field tape into an audiovisual work which aired on the Playboy Cable Network. Society protested the airing on Playboy and shortly thereafter filed suit against WYES, Playboy and the oth- er respondents for copyright infringement. Following two vears of discovery and several amended petitions, Society filed a Motion for Summary Judgment alleging ownership of the copyright and infringement by Respon- dents. WYES filed a cross-motion seeking dismissal of Society’s motion and recognition of WYES’s ownership of the copyright. The United States District Court for the Kastern District of Louisiana determined that WYES was an independent contractor over which Society had exercised insufficient control or supervision to create an employment relationship. Under the ‘‘work for hire’’ » o doctrine, therefore, WYES was found to be the copyright owner and Society’s Complaint was dismissed. Society appealed the dismissal to the United States Court of Ap- peals for the Fifth Cireuit which affirmed the District Court’s dismissal, albeit on different grounds. The Fifth Cireuit held that WYES owned the copy- right because under the ‘‘literal interpretation’’ of the work for hire doctrine, as an independent contractor specially commissioned to create a statutorily categorized work, WYES could only divest itself of authorship by written agreement to transfer same. Inasmuch as the contract between WYES and Society contained no such provision, WYES retained copyright authorship and own- ership. The Fifth Cireuit further held that WYES would be the copyright owner under any interpretation of the work for hire doctrine. Society’s application for rehearing was denied per curiam and the instant petition for review was lodged with this Court. SUMMARY OF ARGUMENT The facts of this case lead to the same result under any theory of the work for hire doctrine and a review of the Fifth Cireuit’s holding would afford Society no relief. ARGUMENT The Facts of this Case Lead to the Same Result under any Theory of ‘‘Work For Hire.’’ Respondents submit that under any theory of ‘‘work for hire’’ as defined by the courts since the Copyriglit Act of 1976, 17 U.S.C. § 101, et seq., Society’s cause must fail. As the Fifth Cireuit stated in its opinion: The Easter Seal Society would probably lose on its claim that the field tapes were ‘‘ works made for hire’’ under any view of the 1976 Act. Easter Seal Soctety v. Playboy Enterprises, Inc., et al., 815 F.2d 323, 336 (Sth Cir. 1987); (Petitioner’s Appendix, p. 36a). The Fifth Cireuit set forth three possible views of work for hire: the literal interpretation, the conservative interpretation, and, the ‘‘ Aldon Accessories Compromise,’’ Although the Fifth Cireuit decided the case under the literal interpretation, a review of the conservative and Aldon Accessories approaches clearly shows, as the Fifth Cireuit intimated, that petitioner cannot recover under any theory. The conservative theory is as follows: If the work was undertaken at the instance and ex- pense of the buyer, and if the buyer had the right to control the work, regardless of whether or not the right was exercised, then the seller was a (legal) em- ployee within the meaning of §101(1). If the buyer wins under traditional analysis, then the court looks to see if the disputed work falls within the nine cate- gories in §101(2). These categories are accorded special treatment, and the buyer will be the author only if he has complied with the requirement of a written agreement. Easter Seal_Society v. Playboy Enterprises, Inc., et al., 815 F.2d 323, 331 (5th Cir. 1987); (Petitioner’s Appendix, pp. 19a-20a). In the instant case, assuming arguendo that the work, the field tape, was undertaken at the instance and expense - J of Society, and that Society had the right to control the work, the work still fails to be a work for hire because there is no written agreement as required by § 101(2) of the 1976 Copyright Act. That section provides that: (2) A work specially ordered or commissioned for use as a contribution to a collective work, as part of a motion picture or other audiovisual work, . [is a work for hire] if the parties expressly agree in a written instrument signed by them that the work shall be considered a work made for hire. . 17 U.S.C. § 101(2) (Emphasis added). In the present case, the field tape was a work specially ordered and commissioned by Society for use as a part of an audiovisual work, the Easter Seal Telethon, and cannot be a work for hire because no written instrument designat- ing it a work for hire was executed. Society is likewise unable to succeed in its claim for copyright ownership under the Aldon Accessories ap- proach, as enunciated by the Second Cireuit in Aldon Ac- cessories, Ltd. v. Spiegel, Inc., 738 F.2d 548 (2d Cir.) cert. denied, 469 U.S. 982, 105 S.Ct. 387, 83 L.Ed. 2d 321 (1984). The Aldon approach focuses on the actual super- vision and creative direction exercised by the commission ing party over the creation of the work. Creative direc tion that is deemed substantial enough entitles the com- missioning party to authorship of the work. In fact, the District Court followed Aldon in denying Society’s copyright in the field tapes. See Easter Seal Society v. Playboy Enterprises, Inc., et al., Civil Action No. 83-39421; (Petitioner’s Appendix, pp. 56a-70a). The District Court found that Society failed to exercise the requisite direction and control over the creation of the 6 field tapes necessary to render it the statutory author under the Aldon view of works for hire. (Petitioner’s Ap- pendix, pp. 665a-67a). That finding of fact is echoed in the decision of the Fifth Circuit, although not necessary to its decision. See Kaster Seal Soctety v. Playboy Enter- prises, Inc., et al., 815 F.2d 323, 324 (5th Cir. 1987); Peti- tioner’s Appendix, pp. 2a-3a). It is submitted that this ‘*fact,’’ found by both the District Court and Fifth Circuit, may not be upset unless there is a very obvious and excep- tional showing of error. Graver Tank & Manufacturing Company v. Linde Air Products Company, 69 §8.Ct. 535, 538, 336 U.S. 271, 275, 93 L.Ed. 672 (1949); Tiffany Fine Arts, Inc. v. U.S., 105 S.Ct. 725, 730, n.5, 469 U.S. 310, 83 L.Ed. 2d 678 (1985). ‘‘In accordance with our usual prac- tice, we must now accord great weight to a finding of fact which has been made by a district court and approved by a court of appeals.’’ The ‘‘literal’’ approach applied by the Fifth Circuit yields the same result. Where a traditional employee- employer relationship under agency law exists, the em- ployer will be the ‘‘author’’ of any work prepared by the creating employee. If the creator is not an employee un- der traditional agency law, he is an independent contractor, the ‘‘author’’ of his work, and therefore the copyright owner. If the work fits within one of the nine categories enumerated in §101(2), the independent contractor may designate the work as ‘‘for hire’’ in a written instrument signed by both parties and thus transfer authorship and ownership to the commissioning party. For all other works, the independent contractor, although remaining the author, may transfer copyright ownership under 17 U.S.C. § 204 to the commissioning party, or may grant an exclusive license to the commissioning party. In the present matter, the Fifth Circuit found that an employee-employer relationship did not exist under agency law between WYES and Society, and therefore that WYES was an independent contractor and author of the field tapes. As no written agreement to designate the work as ‘‘for hire’’ or to transfer the copyright had been made, Society had no claim for infringement by WYES or Playboy. It is respectfully submitted that a review of this case can result in no relief to Society, and that under any theory of the work for hire provisions of the 1976 Copy- right Act, Society is precluded from ownership of the copyright to the audiovisual work. 4) a4 CONCLUSION Assuming, for the sake of argument, that there is a split of authority in the circuit courts, this case is not the proper vehicle for resolving any real or perceived differ- ences in the interpretation to be given the work for hire doctrine. As the above makes abundantly clear, Society would not be found the copyright owner under any theory. The Fifth Cireuit’s opinion is so well-reasoned and thorough as to amount to a virtual treatise on the subject of work for hire. To disturb such a holding on the notion that a different route to the same end may be available would present the classic case of bad facts making bad law. The interpretation and application of the work for hire doctrine is far-reaching. It would be grossly unfair to independent contractors and commissioning parties alike to base review of such an important determination on facts which do not warrant it. Society’s petition for review should be denied. Respectfully submitted, Or CouNSEL: BarHaM & CHURCHILL Cuar_es F’. THENSTED SxyE McLeop 400 Lafayette Street, Suite 300 New Orleans, Louisiana 70130 Telephone: (504) 523-3565 Attorneys for Defendant-Respondent Greater New Orleans Educational Television Foundation Counsel of Record Or CouNSEL: CurIstTovicu & KEARNEY > A.R. CurisTovicH, JR. LianE C. Kino Pan American Life Center 601 Poydras Street, Suite 2300 New Orleans, Louisiana 70130 Telephone: (504) 561-5700 Attorneys for Defendants- Respondents Playboy Enterprises, Inc., et al. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385019_0945%3A2. Public record. Not legal advice.