sixteen and he died in new york city in two thousand and thirteen at the age of ninety seven in that seven decade career he was a very distinguished author a teacher of what we now call a public intellectual he hosted a public television program he wrote numerous books he wrote for many many publications most conspicuously the new republic he started to write in the new republic in one nine hundred fifty eight and he wrote until he died fifty five years later was he paid a salary by the new republic or was he paid a salary  thousand dollars or so oh well it was a regular payment he he delivered to his column which was expected and then he delivered separate pieces want to offs which were not expected which he originated and he said here here's here's some more pieces would you like to publish them or any of the one offs at issue in this case yes yes they are because the letter that the suppose at work for hire letter says all articles it covers all articles it covers the one offs and as a matter of law the one offs could not be i work for hire because they were not specially ordered or commissioned the one offs can't be work for hire but the letter says we always understood that all works who works for hire that's impossible that's simply impossible and therefore they didn't understand that and there was nothing that was communicated between them your honor for forty six years from one nine hundred fifty eight to two thousand and four mr cowen was the sole copyright owner of every piece he wrote for the new yorker for the new new republic the sole copyright owner that will not be disputed it was not disputed below then let me ask you this eighty five of the  expired at the end of two thousand nine hundred seventy seven there was this notion of indivisibility in the visible copyright and this court has said that you can only have one copyright we're going to recognize that the copyright in the name of the publisher covers the copyright for the individuals this court is most recently in the morris case which we cite  under the old law which doesn't directly apply here but under the old law they had magazine had to do that to protect the copyright for the individual author and what the new republic did quite properly and quite consistently with what other publishers said yes we had to copyright this in our name we're giving you back your copyright and so he was the copyright owner for under the old l and nine act for every piece in from one nine hundred fifty eight through one nine hundred seventy seven no question he was the owner if only because the new republic gave him back those copyrights hundred seventy eight to two thousand and four i think that's twenty six years he was the sole owner of all those copyrights because there was no writing on the copyright act requires or writing so from under the new law from one nine hundred seventy eight to early two thousand and four he own interests beautifully own every copyright to everything he wrote for the new republic so we have forty six years thousands thousands of pieces thousands of copyrights which he and he'll own owned more more rel perhaps he exercised his ownership he granted rights all over the place he granted reproduction rights he granted excerpt rights he granted rights as the owner not a peep out of new republic not a word out of a new republic he was recognised to be the owner so the new republic comes up in two thousand and four with a form letter it's page seven of our brief and if i can just it says we have always understood in doing business with you that in light of our regular monthly compensation arrangement with you all articles you have written for the new republic have been works made for hire as that term is the find under the u s copyright laws the letter doesn't use the word ownership the letter doesn't say you're giving us back forty six years worth of copyrights the letter doesn't say that and i want to read to you from what the defense what all right he says about that letter it says the pla language of the two thousand and four letter refers to the term quote works made for hire close quote as it is quote to find under the u s copyright laws it thaws plainly indicates that the term has legal significance under the copyright law that could easily easily be ascertained by reviewing the statute that's their defense for this letter is that stanley coun now you know your honor as i've been a copyright lawyer for over fifty years nothing's easy about the copyright act and nothing nothing can be found here that explains it this letter was a shame and i just ask you to tell me why playboy doesn't control here in playboy or some of the watches were effective in in creating words for hire on the checks and they were executed after the work was created and delivered to playboy why doesn't the why isn't that holding the writing can be after the actual transaction and still be valid under the statute if you saw my footnote i litigated they were works pacific writings one at a time executed simultaneously with the creation of the work and what this court said this court said we don't want a situation where where the author owns it for forty six years and then suddenly doesn't own any more this court said that's not right this court said we want to have clear and definite ownership of copyright that doesn't really fit forty six years of one o and then a new owner based on our form letter it says look it up in the copyright act and again playboy says in the fact pattern of this case we will assume that's what this court said assume that all writing after creation might be permissible this court relied on the numerous hypothetical which said the paperwork may not be completed until the work is creating till after the work screwed playboy absolutely applies and i am betting this case on playboy applying here and playboy says in the fact pattern of this case we will assume that our writing can follow creation the other thing playboy says is the issue is that the paul what did they understand forty six years ago or ten years ago they had to have understood at the time of creation that it was work for hire is not a shred of evidence not a hint in this case that they understood any such thing as we i never discussed with family stanley was issuing licenses all over the place new republic never said boo and if i may just one more thing declare your forty six years of work to be work for hire let's change a few words we hear by confirm that we always understood that your work was going to be work for hire that's this case we hit forty six years later the only change in the writing is we hear by confirm that we always understood your work was work for hark they have nothing else here you want a rebuttal and i knew going in is it clear agreement was not filed with the copyright office that's correct assignments would have to be is not correct i don't know that they have to be but they're very recommended to be for a consistent proof of ownership they're not required but they're custom are yes so what i'm wondering is if if the theory of not of either not apply well you used a playboy implies let's even give you the benefit of the doubt and say if the theory is we  should extend playboy or should declined because he would upset settle expectations if these agreements aren't file had anywhere where's the subtle the expectational the expectation did constitute him as not just an owner as you said but a offer and then the institute issued a license it would be up to stan lee cowan or his estate to object is that the idea the institute you know i'm sorry that rochester in here well they didn't issue any licenses they published because some scoundrel who understand what if they if they if they if they thought they now ha had the rights pursuant to this agreement they could then license the agreement that they quote agreement was between the new republic and stanley county and not they were not a party they didn't know about this until late in the in the litigation they didn't rely on it and publishing the book at all they didn't know about it nobody knew about it it was buried in the files of the new republic they served a subpoena on the new republic and lo and behold we have this letter we didn't know  do not claim to this day that they had the right to publish just book they it met this book is full of intrenchments that's not in dispute this entire book is full of infringements and that is not in dispute they don't claim any rights please the court my name is mary more on behalf of the pelly defendant below rochester institute of technology this case presents a straightforward application of contract interpretation in this court's analytical framework for later in time works for hire writings set forth in the playboy enterprises decision and which has been applied by courts throughout the united states i wanted to just pick up a couple points one that was brought up about was mr kaufman paid a salary as that shown an eighty five in the record he was paid a regular monthly flat fee for his contributions to the new republic at least between the times of nineteen eighty one thousand nine hundred eight and two supposedly one off unspecified writings that he supposedly provided to the new republic i believe that came up what's at issue in this case they were film review contributions that were made to the new republic in the year in  of which were made pursuant to his monthly compensation agreement with the new republic which is what is set down and confirmed in the writing from two thousand and four so these supposedly off agreements that he apparently also provided we don't have any facts or information about what those are how he was paid for those if it was different from the flat fee agreement what's at issue are in one thousand nine hundred nine film review contributions which were undisputedly provided pursuant to the under the statute the works need to be specially ordered or commissioned by the hiring party that's the first prong of the statute that was not disputed by mr kaufman's the state mr coffin's the state did not dispute the fact that the new republic didn't fax specially order or commission his film review contributions to the new republic based on the fact that the that the new republic was paying him this monthly flat fee compensation arrangement that is evidence of the fact that kaufman was creating these at the instance an expense of the new republic so that was not disputed what's at issue here is whether or not the two thousand and four letter is an effective writing memorializing the work for hi basis because the court said neither party proffered any direct evidence of the intent of the parties before creation of the work so there was no evidence direct evidence about if the parties had a how to work for hire agreement in this case it's below is as you noted before mr kaufman had been transferred copyright ownership for many of his works in the one nine hundred sixty s seventy's and eighty's so he could license those works he owned the copyrights for them the two thousand and four letter presumably would not change just recognizing the fact that they were originally contributed his works made for hire but in the past the new republic to transfer ownership there's also a two hundred six in the record as it was owner during the author by default the new republic could not enforce its ownership until it had a memorialization this court said that you can have a later in time writing the fact is mr kaufman it was it is undisputed it i mr kaufman didn't act inconsistent with the oral agreement that they had for throughout the course of their relationship that these works made for hire when he was licensing he owned the copyrights there is a six is a permission where was the author as the hiring party prior to the one nine hundred seventy six x there didn't need to be a writing the new the new republic regularly transferred ownership even though they were  that that was always the party's understanding mr kaufman did not there is no evidence in the record that mr kaufman believed that he owned these copyrights it was holding them out to the world we have in a miscible declaration the licenses weren't passed so there's not evidence in the record the evidence that's clear on its face is the two thousand and four letter word mr kaufman signed it and he said i agree that this is better understanding the entire time and the purpose of the writing requirement as is laid out in the playboy enterprises decision is predictability and and it was put in out of a concern for unilateral efforts to obtain work for a higher price years later that's not this case mr kaufman had a prior oral agreement which he acknowledged in writing he didn't have to sign that document but he did and he's presumed to know the terms of what he signed and to have agreed to them when he signed it this was not a unilateral declaration of work for hire status this is not post facto this is not oh them agreeing later that we're going to call these work for hire this they laid down in the agreement that th ese had always been work for hire contributions or i think i think i misspoke on that point your honor there was always an oral agreement that the new republic own to the copyrights that oral agreement would have been ineffective without the writing i concede that point but there is a writing that occurred in two thousand and four that what what is in effect and if i trying to get from europe was the parties were acting as though the new republic was the owners acting or what they were doing or what the arguments are i want to know what your position is the author prior to the written agreement the new republic couldn't have been enforce its rights as the author it didn't that occasion never came to pass as the author that's not one or the other is the author is and that yes your honor the parties had an oral agreement who the new republic was not the author and therefore isn't he the author presumably he would have to be the author but that's not this case the two thousand and four writing was done he is sued for copyright in question whether the writing changes something or not so i want to know what your view is so who is the author of the writing the parties understood the new republic to be the author that was their understanding but but that's not your position as it is in your position before the writing he's the author i believe that i misspoke when i said that the parties  in any event you're free to tell me the way i'm just asking you what your position my position is that the odds that the parties had agreed that the new republic why is the author and they memorialize that writing five years after the words what they  in this issue agreement and worse and weird some point going to decide the legal effect that you're here telling us your position in this litigation and one of the issues that may well right i didn't miss you you did misspeak when you said a few minutes ago that yes you was the author at that yes your honor i come back to the point though that the world that we live in is one where he did memorialize his oral agreement and that is what he discovered during the course of this case and for purposes of predictability that's what the writing requirement is for so that third parties like our i t can go to the new republic and say do you have any written that i think it's a retroactive change your honor this court previously held that that you could have a later in time writing we say to other district courts throughout the country that have allowed later in time writings executed ten years after eight years after the works were created a year after the works were created courts and parties are have relied on this and in those cases the owner of the oftentimes the ownership in authorship is the same in the case of a work made for hire so the work made for hire is about authorship and so the hiring party is considered the author and the owner of the work that's if it really is a work made for h ms moore says they always understood that it was work for hire no they didn't there is nothing in the record zero that they had any understanding until conceded i mean or what if mr kaufman conceded i always understood that and they always understood if you want to give full force and effect to that letter which doesn't use the word ownership and doesn't talk about forty six years of work and doesn't talk about the want to office you may you have obviously you have the the right and the responsibility to do what you think is right about that one page letter there is nothing in the record to just prove or dispute that only mr cowan considers himself the owner of the new republic never issued a license that we were aware of never granted anybody anything to do with it and prior to two thousand and four i want to say this as clearly as i can mr cowan from and was the sole owner and author of every copyright of every piece undisputed and i explained why in my main argument there is no other claim of ownership they very grudgingly will dispute that they will concede that but he was the sole owner he acted as the sole owner only i want to talk about specially ordered commissions because the suggestion is that that makes it work for hire it doesn't make it work you can have specially ordered and commissioned and you can have a writing that says this confirms that it's not work for you can still have specially ordered commissions most columns most regular columns by freelancers are specially ordered and commission it doesn't make them work for hire what makes them work for hire is an understanding that's what this court said in playboy and understanding at the time of creation that the work is work for hire i have some examples but i have no time one example a freelancer a piece to a magazine and it's specially ordered and commission let's concede that and they don't say anything there's no writing about work but the freelancer grants movie rights and there's a major motion picture and the publisher says in an email congratulations on your movie say oh can you get me tickets to the opening the publisher doesn't think he's the copyright owner the publisher doesn't say hey what why did you license that movie i own those rights in my hypothetical it specially ordered in commissions ok we want you to do this and we're going to pay you for but you sold the movie rights and i want you to get me tickets to the opening is i generally sure i understand is your position that when the agreement says it was always our understanding that even if that is some evidence of what their prior understanding was it doesn't matter because the agreement has to be in writing and it shouldn't be honored when it comes five years after the event that is my starting position yes i also think there was never a meeting of the minds there was never any of this lead i think is a sham the shameful sham but even even if it correctly evidences their true intent doesn't matter that's your view right well unless you can retroactively make an a letter in two thousand or so and unless and you think that can't be