Page:Murray v. Gelderman (566 F.2d 1307).pdf/5

  freedom, and the defendants “assured [her] that all of the rights of … design and creation of the book and its cover would be [hers] alone.” Appellant’s brief at 2–3. Allowing Murray to offer this “control” agreement—upon which she insisted—to demonstrate that the corporation lacked the requisite supervisory powers over her work would permit an employee to circumvent the works for hire doctrine simply by demanding creative freedom as a condition of employment. We decline Murray’s invitation to adopt such a rule, where, as here, an employer has no intention of supervising the work of an employee hired specifically to produce certain material. The corporation, choosing not to exercise its right of supervision, delegated it to Murray in accordance with her demands.

Appellant also seems to argue that the existence of disputes surrounding the method of compensation and the precise nature of the relationship between the parties precludes summary judgment. The simple answer to this contention is that neither of these disputed facts has any bearing whatsoever on the pivotal issue of the existence of an employment relationship.

Running through appellant’s briefs, pleadings, and motions in this case seems to be the thread tying together her theory of this case: that she is entitled to the copyright because she is the book’s author. This notion indicates a fundamental misconception of the law in this area. The fact that appellant authored the book in the technical sense is immaterial under the works for hire doctrine, which defines the employer as author for purposes of copyright law. We accept as true Murray’s allegations that she wrote the book and performed various creative, editorial, and promotional tasks. But once we conclude, as we do here, that an employment relationship existed, these facts become irrelevant.

No facts alleged by appellant suggest that the parties intended for the copyright to be in the appellant. She has thus failed to overcome the presumption that the mutual intent of the parties is that the title to the copyright shall be in the employer. Accordingly, we affirm the judgment of the district court.

No member of this panel nor Judge in regular active service on the Court having requested that the Court be polled on rehearing en banc, (Rule 35, Federal Rules of Appellate Procedure; Local Fifth Circuit Rule 12) the Petition for Rehearing En Banc is DENIED.