Legal issue with Text Book

Zonk · Dec 29, 2006

I'm not sure that this is the right forum for this, but here goes.

I have a friend who was a school administrator. This person, while employed by a particular school, was in the process of writing an English textbook. The school not only encouraged my friend, but allowed time during normal working hours for this project. Most of it, however, was written at home, but kept in a master file on the school computer.

It was almost finished, and a connection had been made with a publisher who showed interest, when my friend had to leave that particular institution, for reasons that do not concern us here.

My friend's lawyer's advice: the school has a right to keep the file, since the work was done with their permission, and partly on their time. The lawyer, to my knowledge, has never represented an author.

My friend would like to get the file (or at least access to it to copy same), otherwise having to re-create whole sections of the book, setting the project back considerably.

Said friend is averse to confrontational situations, and has left the matter as it stands, though very much wishing to finish.

My feeling is that the legal advice given to my friend was so much freshly-squeezed horse droppings. I say that the book is my friend's intellectual property, and that the school has no right to it whatsoever; they cannot publish it, and should be willing to hand over the file.

Anyone out there with expertise that can speak to this situation?

:rant:

veinglory · Dec 29, 2006

If the master file is on his work computer his case is weak. It suggests he was on the clock for at least 50% of the writing nd unless he can prove otherwise, in writing, it was work for hire. It's a timely reminder, private work should be kept on personal computers.

Pat~ · Dec 29, 2006

Zonk, I don't have legal expertise, but have heard of this happening before (where it concerned a computer on school property and writing done on school time, at least partially)--and from what I heard at the writer's conference, the school unfortunately does have legal right to the manuscript.

soloset · Dec 29, 2006

Hmm... well, if I were your friend, I'd definitely get a second opinion from someone who specialized in contracts.

The niceties of "work for hire" situations elude me, I'll admit, but unless it's specifically stated in your contract that the company is hiring you to create the specific work (or a bunch of similar works), isn't it at least a gray area?

What does his contract say? Is the school being grabby, or is he more afraid of what might happen if he broaches the subject?

And I second the warning to keep your private files at home. I've heard people talk about how they write on company time, and it strikes me as a very bad idea. Even if you're very careful to delete your files, you don't know what type of security is on the computer or who might be watching.

I worked for a company once where the tech guy thought nothing of remotely co-opting whatever computer he pleased at a whim; humorously inserted cuss words on page eighteen are the least worrisome thing I can think of that he might have done to a hapless timecard cheat.

And be very careful when signing anything while going through the hiring process. Lots of paper flying around, and not all of it seems consequential at the time. I seem to remember there was a case a while back where a programmer was bilked out of quite a bit of work because the contract he signed when he joined the company said they owned everything he created on or off the clock, and he happened to create a popular open source application on his own time.

veinglory · Dec 29, 2006

I think employed work tends to presume the other way, if you do it in the office or with employer's equipment it should be work--they other part being the issue of possession. They have the work on their hard-drive.

Timely reminder number two, back up and in several places. If they had to stop him from publishing or grab the earnings that would be very hard, but he has to get them to give him the book and I don't think they have to. Their computer in their office, their file.

Zonk · Dec 29, 2006

veinglory said:
If they had to stop him form publishign that would be hard, but he has to get them to give him the book and I don't think they have to. Their computer in their office, their file.

But my friend's intellectual property. Remember when the ISP held AW's database hostage? It was on their server, but it definitely was not their files.

veinglory · Dec 29, 2006

The file on their computer would be logically presumed to be typed using their equipment and largely on their time while they were paying not only for the computer and electricity, but his time. People who work during salaried hours do not have intellectual property rights because they were paid for *whatever* the intellect was producing in that time and place -- just as my university does. I have to have explicit permission to work on books, in writing, from my boss, and I may not work on them in my office, during work hours or using university equipment--not even a piece of paper or a pencil.

Sure, generally you can get away with blurring that line but it is best not to given the balance of power involved--as you can get totally screwed. I write my books only on my laptop even if I do sneak some time on them during the lunch hour. It shifta the burden of proof in any potential dispute.

I would strongly advise he pull his head in and rewrite the sections--make an issue for it and they school may be provoked to try and claim those royalties when normally they would let it slide. Sure, do talk to a lawyer but I am pretty sure tha his position is like mine and I know what I had to do to personally own the labor put into my non-fiction books--especially as the book topic relates to what I do in may day job.

cattywampus · Dec 29, 2006

If anyone here knows more about the law than his lawyer, let him cite the law that provides differently. If you are not going to believe what your lawyer tells you, why hire him?

This is the best justification for backing up that I've seen for a long time. Plus, if your friend doesn't have access to the file(s), how do you figure he has "intellectual rights?" What would those be?

creativemusings · Dec 29, 2006

If it is on a school computer, which is school property, then the material is also school material. Unless he specifically has it in writing that it is not or that they release all rights to the material and hand it over to him.

I suggest he start writing again.

Zonk · Dec 29, 2006

veinglory said:
The file on their computer would be logically presumed to be typed using their equipment and largely on their time while they were paying not only for the computer and electricity, but his time. People who work during salaried hours do not have intellectual property rights because they were paid for *whatever* the intellect was producing in that time and place -- just as my university does. I have to have explicit permission to work on books, in writing, from my boss, and I may not work on them in my office, during work hours or using university equipment--not even a piece of paper or a pencil.

Even if permission was asked for, and granted, for use of said computer, electricity, etc? The issue of intellectual property was not covered in contract or job description. I also assume that your university has a stated policy on this issue, which the school in question does not.

cattywampus said:
If anyone here knows more about the law than his lawyer, let him cite the law that provides differently. If you are not going to believe what your lawyer tells you, why hire him?

This is the best justification for backing up that I've seen for a long time. Plus, if your friend doesn't have access to the file(s), how do you figure he has "intellectual rights?" What would those be?

Does it follow that a lawyer specializing in land conveyance and corporate formation can give good advice regarding copyright law?

Any information that comes out of your brain, and is fixed in a recoverable medium, is your intellectual property, unless you have signed a contract that waives this right. That is not the case here, as far as I can see.

Have to agree wholeheartedly with your statement about backing up, though.

veinglory · Dec 29, 2006

Even if the permission is granted in a binding, written form his employment contract and industry norms may well trump it. I have that written permission, and I still write my stuff at home on my laptop.

Honestly, I don't think this is one he will win. But if he needs a qualified lawyer who understands contract/labor situations, that what he should get.

KCH · Dec 29, 2006

Veinglory has given you a well thought-out and comprehensive answer.

Your friend's situation is complicated by the fact that he's paid with taxpayer dollars. A private employer is free to be as amiable about time spent on personal projects as he wants. Publicly-held corporations or tax-funded operations have no such latitude. As a school administrator, your friend would know this. I suspect that's why he's inclined not to push the issue. Of course, your friend certainly can try to argue why the taxpayers should cheerfully overlook the unauthorized funding of his personal writing project. If the advance and royalties went to the school, that's one thing. But personal enrichment on the taxpayer dime is quite another.

roach · Dec 29, 2006

Your friend should get a second opinion from a lawyer who specializes in IP law. But there's a good chance the second opinion will echo the first. This is a situation that crops up a lot in the IT field. My husband doesn't work on any personal programming at work because of this. I don't think the company he works at has a policy that work done during business hours at the office become their property, but I do believe a few years ago there was a case where it was found that such a policy didn't have to exist for an employer to exercise those rights.

If the school does have rights to the work in question, your friend most likely won't even be able to rewrite the book as that might be considered a derivative work.

Tish Davidson · Dec 29, 2006

The other question is who gave him permission to work on the book during school time and did that person have the authority to give him permission. But basically, if you are in a salaried position, what you create on company time with company equipment belongs to the company. My husband, for example, has patents in his name, but the rights to them belong to the company he works for because he created the patentented item on company time with company equipments as an offshoot of his job. In his case, this was clearly stated in his contract.

And what I really want to know is how a school administrator would have time to both do his job and work on a book during school hours. I bet the taxpayers in his district would be pretty unhappy about that arrangement.

Zonk · Dec 29, 2006

KCH said:
Veinglory has given you a well thought-out and comprehensive answer.

Your friend's situation is complicated by the fact that he's paid with taxpayer dollars. A private employer is free to be as amiable about time spent on personal projects as he wants. Publicly-held corporations or tax-funded operations have no such latitude. As a school administrator, your friend would know this. I suspect that's why he's inclined not to push the issue. Of course, your friend certainly can try to argue why the taxpayers should cheerfully overlook the unauthorized funding of his personal writing project. If the advance and royalties went to the school, that's one thing. But personal enrichment on the taxpayer dime is quite another.

Tish Davidson said:
The other question is who gave him permission to work on the book during school time and did that person have the authority to give him permission. But basically, if you are in a salaried position, what you create on company time with company equipment belongs to the company. My husband, for example, has patents in his name, but the rights to them belong to the company he works for because he created the patentented item on company time with company equipments as an offshoot of his job. In his case, this was clearly stated in his contract.

And what I really want to know is how a school administrator would have time to both do his job and work on a book during school hours. I bet the taxpayers in his district would be pretty unhappy about that arrangement.

The school in question is a private school, so the taxpayers have nothing to say.

My friend was also at the time working without a contract, just a job description.

The way my friend was able to fulfill both the job description and find time to work occasionally on this project is because my friend doesn't know how not to work 10 or 12 hour days.

I do appreciate all your advice. you may in fact be right, and my initial reaction not. However, something has come up which may make the discussion moot. I just learned this afternoon that an old and trusted friend of mine has assumed the school board presidency.

I called him.

He has agreed to arrange a meeting between my friend and the relevant committee (which he chairs), to discuss the matter. He agreed with me that since neither the school nor my friend seem to able (or willing) to pursue publication as the matter stands, a negotiated settlement seems to be a win-win for both parties.

Since my friend is not averse to the school receiving some of the royalties, it may simply be a matter of agreeing to percentage points. I'll keep you posted.

Rep points to all who took the time to give advice

Jaws · Dec 29, 2006

The real problem here is that nobody has even hinted about the document(s) that would resolve this: The employment contract and the employee handbook. Bluntly, if these are silent on the matter  as most are  and the job description does not make writing a textbook within the scope of the employee's duties, the employer may not claim an ownership interest in the textbook.

Whether the employer can hold the files hostage is another, and more difficult, question that shouldn't be discussed in this forum.

Talia · Dec 29, 2006

agree with Jaws , you need to consult the employment contract. In this case, as your friend was working without an employment contract they would appear to be an independent contractor, not an employee. This may strengthen your friend's claim to 100% of the royalties and the return of material

Also, was any arrangement made between the teacher and the school at the inception of the book? Unfortunately intellectual property law and copyright may belong to the school if it was done during work time with the knowledge and encouragement of the employer. Many contracts stipulate that any discoveries, work etc etc belong to the employer. Think of the research scientist that discovers a drug to cure obesity or impotence. The patents and royalties belong to the employer. In this case I am not clear whether your friend was an employer or independent contractor.

In this case copyright is obscured by the fact that much of the work was done on school premises with the knowledge and consent of the employer.

I'm sure a win-win solution can be found if both parties are happy to talk about it as you suggested in your latest post. I would recommend your friend consult a publishing lawyer prior to the meeting so that s/he is clear on their legal standing and does not unncecessarily cede royalties.

KCH · Dec 30, 2006

Zonk-- Glad to hear that things may work out amicably after all. Much better than the contentious alternatives. Sounds like your friend is lucky to have you around.

Also glad to hear this is a private school....could you tell that tax waste and mismanagement is a hot button for me? lol.

Tish Davidson · Dec 30, 2006

TaliaMana said:
agree with Jaws , you need to consult the employment contract. In this case, as your friend was working without an employment contract they would appear to be an independent contractor, not an employee.

Working without a contrat does not automatically make someone an independent contractor. There are lots of other conditions that must also apply. I'm glad that a negotiated settlement to a messy situation appears possible.

Jaws · Dec 30, 2006

TaliaMana said:
Unfortunately intellectual property law and copyright may belong to the school if it was done during work time with the knowledge and encouragement of the employer.

This is what most employers would like people to believe. It is also untrue. The Copyright Act, the Patent Act, and the Lanham Act (copyrights, patents, and trademarks respectively) each have very specific requirements for making an employee's work the property of the employer. Although they vary, in all three cases "done during work time with the knowledge and encouragement of the employer" isn't even close to being sufficient.

Limiting to copyrights for the moment, the expressive material must be within the scope of the employee's duties, not just with the knowledge of the employer. As specific examples — and they're real, although not well known — consider the janitor at a Hollywood studio who writes novels in the break room when things are slow and the longshoreman in San Francisco who writes proto-New Age philosophy while waiting for ships to dock and undock. Even though both employers knew (and encouraged) the work, neither employer's later claim of ownership of the resulting copyrighted material will succeed.

No transfer of an interest in a copyright may be made without a signed writing. It need only be clear in most cases. However, the work-for-hire provisions of the Copyright Act — unlike most of the rest of the Act — do require strict compliance. None of this is to say that the employer can't bluster, intimidate, and make life miserable; it's only to say that if the author has competent representation and the resources to fight, the author's victory is probably inevitable. (Unfortunately, as in most things in "real life," it's the "ifs" that matter to the actual result.)

Zonk · Feb 7, 2007

An update on this situation...

It seems all will be well. After several conversations, and a hiatus during which my friend (the board president) was out of town, yesterday he agreed to give my friend (the writer) a letter granting permission for her to access the school database to review and remove what the letter acknowledges is her work.

A complication arose midway through the negotiations; my friend had also performed a curriculum review for the school, for which the teachers had prepared lesson plans, and collectively received significant amounts of overtime pay. Confusion arose when one of the present administration assumed this was the work to which my friend referred.

Happily this appears to have now been resolved.

Many thanks again to all who posted, and especially to Jaws, to whose opinion I referred in clarifying the issue to the board president. He does understand, Jaws, that it isn't a formal legal opinion, but after visiting your website concluded you probably had a reasonable handle on the subject.

Although Bahamian Copyright Law is not identical to the American, we are signatories to the Bern Convention, so the underlying principles are similar.

I'll post a final update when I hear from my friend (the writer) that she has her work in hand...

veinglory · Feb 7, 2007

I'm glad to hear it was all worked out amicably

Legal issue with Text Book

Zonk

veinglory

volitare nequeo

Pat~

Luftmensch Emeritus, A.D.D.

soloset

'bye

veinglory

volitare nequeo

Zonk

veinglory

volitare nequeo

cattywampus

creativemusings

Zonk

veinglory

volitare nequeo

KCH

roach

annoyed and annoying

Tish Davidson

Zonk

Jaws

Apex Predator

Talia

Contract Killer

KCH

Tish Davidson

Jaws

Apex Predator

Zonk

veinglory

volitare nequeo