Page:Murray v. Gelderman (566 F.2d 1307).pdf/4

 employment. Scherr v. Universal Match Corp., 417 F.2d 497 (2 Cir. 1969), ''cert. denied'', 397 U.S. 936, 90 S.Ct. 945, 25 L.Ed.2d 116 (1970); Bourne, supra. The crucial element in this determination appears to be whether the work was created at the employer’s insistence and expense, or, in other words, whether the motivating factor in producing the work was the employer who induced its creation. Siegel v. National Periodical Publications, Inc., 508 F.2d 909 (2 Cir. 1974). Another factor is whether the employer had the right to direct and supervise the manner in which the work was being performed. Scherr, supra; Bourne, supra. Actual exercise of that right is not controlling, and copyright is vested in the employer who has no intention of overseeing the detailed activity of any employee hired for the very purpose of producing the material. See Yardley v. Houghton Mifflin Co., 108 F.2d 28 (2 Cir. 1939), ''cert. denied'', 309 U.S. 686, 60 S.Ct. 891, 84 L.Ed. 1029 (1940). In addition, the nature and amount of compensation or the absence of any payment for the work may be considered but are of minor importance. Epoch Producing Corp. v. Killiam Shows, Inc., 522 F.2d 737 (2 Cir. 1975), ''cert. denied'', 424 U.S. 955, 96 S.Ct. 1429, 47 L.Ed.2d 360 (1976); Scherr, supra.

This doctrine is inapplicable in the absence of an employment relationship, and appellant strongly urges that such a relationship does not exist. We disagree, for the facts, viewed in a light most favorable to appellant, indicate otherwise. These determinative facts were placed before the district court by means of the pleadings, affidavits, and depositions. Under these circumstances, summary judgment is appropriate. See Famous Music v. Bay State Harness Horse Racing & Breeding Ass’n, 554 F.2d 1213 (1 Cir. 1977).

Defendant Gelderman originated the New Orleans menu book project and initially approached Murray about working on it. Murray definitely expected to be compensated for her services in producing the book, though the details of that compensation arrangement are in dispute. The book was published at the insistence of the corporation, which absorbed all costs of publication and reimbursed Murray for out-of-pocket expenses. The corporation also gave her editorial control of the project, without which she would not have taken on the task. It is abundantly clear that Murray was not working for herself, but rather for the corporation. We hold that, on these facts, an employment relationship existed.

Murray contends that she alone had control over the contents, format, and production of the menu book, and that the element of employer oversight is missing. Professor Nimmer has labeled this factor as “crucial” in “determining an employment relationship….” Nimmer on Copyright § 62.2 (1976). Murray would not take the author’s job unless she was given