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Subject: Re: Contract vs. Commission

Author: Jeremiah Penery

Date: 22:38:55 05/03/02

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On May 03, 2002 at 23:54:15, Slater Wold wrote:

>On May 03, 2002 at 23:45:22, Jeremiah Penery wrote:
>
>>This seems to be an issue of contracting a work vs. commissioning a work.  In
>>general, an author under contract to write "one or more books" without
>>guidelines retains copyright on those books, while an author who is commissioned
>>to write a specific book, with some guidelines, does not retain copyright.  I'm
>>sure this can be altered by the specific contract between the two parties.
>>
>>Unfortunately, it can be difficult to define "commissioned work" accurately.
>>Textbooks and reference books are mostly commissioned works, most other books
>>aren't.  Is the Rebel book a commissioned work, or simply a contracted one?
>>Maybe that's the important question here.
>
>Let me reinterate:
>
>"Although the general rule is that the person who creates the work is its
>author, there is an exception to that principle; the exception is a work made
>for hire, which is a work prepared by an employee within the scope of his or her
>employment; or a work specially ordered or commissioned in certain specified
>circumstances. When a work qualifies as a work made for hire, the employer or
>commissioning party is considered to be the author."
>
>The key being "..or a work specially ordered or commissioned.."

IMO, the key words are "in certain specified circumstances", and "When a work
qualifies".  What are the "certain specified circumstances" mentioned?  And does
the Rebel book qualify?

>Specially ordered work is contract work.

Specially ordered work is commissioned work, not contract work.

I can have a contract that says I will write 3 more books over the next 5 years,
for X sum of money.  Those books are contracted works, but they are not
specially ordered, and they are not commissioned.  The author still retains
copyright.

>Commissioned work is commissioned work.
>
>Bottom line, if Ed and Christophe approached Noomen and asked for a book, in
>return for money, the book belongs to them.

This is my point of contention - I think your statement is false.  Whatever the
circumstances here, I'm not convinced the book should be considered a
"commissioned work".  And if it is, its copyright status could depend on the
contract made between Ed and Jeroen.

>While I am not 100% certain they
>did, my guess would be this is what happened.  I am 100% certain Noomen HAS been
>compensated for his work.

Yes, of course he has.

>Besides, I was just making the point, it is a VERY real possibility that the
>book doesn't even belong to Noomen.

It is a possibility, I agree.  I just don't think it's the correct one.  In
addition, we're both applying US copyright law to this, which may or may not
hold 100% true in the Netherlands.



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