566 F.2d 1307 (5th Cir. 1978), 77-2061, Murray v. Gelderman

Docket Nº:77-2061.
Citation:566 F.2d 1307
Party Name:197 U.S.P.Q. 142 Joy Love Boone MURRAY, Plaintiff-Appellant, v. Carol W. GELDERMAN, Miguel Uria, and Shaun Viguerie, all Individually and d/b/a New Orleans a La Carte, Ltd., and New Orleans a La Carte, Ltd., Defendants-Appellees.
Case Date:February 06, 1978
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit
 
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Page 1307

566 F.2d 1307 (5th Cir. 1978)

197 U.S.P.Q. 142

Joy Love Boone MURRAY, Plaintiff-Appellant,

v.

Carol W. GELDERMAN, Miguel Uria, and Shaun Viguerie, all

Individually and d/b/a New Orleans a La Carte,

Ltd., and New Orleans a La Carte, Ltd.,

Defendants-Appellees.

No. 77-2061.

United States Court of Appeals, Fifth Circuit

February 6, 1978

Page 1308

Thomas S. Keaty, C. Emmett Pugh (on rehearing) New Orleans, La., for plaintiff-appellant.

Michael F. Little, New Orleans, La., for defendants-appellees.

ON PETITION FOR REHEARING AND PETITION FOR REHEARING EN BANC.

Before THORNBERRY, RONEY and HILL, Circuit Judges.

THORNBERRY, Circuit Judge:

The petition for rehearing is GRANTED, this panel's opinion of November 23, 1977, 5 Cir., 563 F.2d 773, is withdrawn, and the following is substituted in lieu thereof.

Appellant Murray brought this action for copyright infringement pursuant to 28 U.S.C. § 1338 against New Orleans a La Carte, Ltd., and its shareholders. The district court dismissed the complaint for failure to state a cause of action. Rule 12(b) Fed.R.Civ.P. For the reasons stated below, we affirm.

Because the district court considered matters outside the pleadings in ruling on defendants' motion to dismiss, we must treat the motion as one for summary judgment. Rule 12(b), Fed.R.Civ.P.; Carter v. Stanton, 405 U.S. 669, 671, 92 S.Ct. 1232, 31 L.Ed.2d 569 (1972); Arrington v.

Page 1309

City of Fairfield, 414 F.2d 687, 692 (5 Cir. 1969). 1 Accordingly, we look at the record in the light most favorable to Murray, the party opposing the motion, and take her allegations as true. United States v. Diebold, Inc.,369 U.S. 654, 655, 82 S.Ct. 993, 8 L.Ed.2d 176 (1969); E. C. Ernst, Inc. v. General Motors Corp., 537 F.2d 105, 108 (5 Cir. 1976).

In May 1975, defendant Gelderman approached Murray about the possibility of producing a book containing the menus of famous New Orleans restaurants. The idea originated with Gelderman, who had seen a similar book based on restaurants in Aspen, Colorado. Murray was initially uninterested in the project but later agreed to undertake the creative and editorial work. Murray, Gelderman, and defendants Viguerie and Uria met to discuss forming a corporation to publish the menu book. The articles of incorporation were executed in July 1975, with defendants providing the necessary capital. Although Murray was made an officer and director of the corporation, she declined for financial reasons to invest as a shareholder.

Murray worked on the book by herself for several months, making the necessary contacts and handling various chores relating to publication. 2 The book was published in October 1975, and after publication the copyright was issued in the name of the corporation. Soon thereafter the relationship between the parties began to disintegrate, and this lawsuit followed.

This sequence of events is not critical to the disposition of this case. The crucial question is whether the working relationship between Murray and the defendants was sufficient to bring the "works for hire" doctrine into play. We hold that the doctrine is applicable.

The Copyright Act of 1909 3 provides for statutory copyright protection for an "author," 17 U.S.C. § 4, and defines "author" to include an employer in the case of "works made for hire." 17 U.S.C. § 26. The statute represents a codification of the so-called "works for hire" doctrine recognized by the Supreme Court in Bleistein v. Donaldson Lithographing Co.,188 U.S. 239, 23 S.Ct. 298, 47 L.Ed. 460 (1903).

This Court has apparently not been called upon to apply the doctrine, 4 but the general principles in this area are fairly clear. An employer and an employee...

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