Case 1:22-cv-01564-BAH Document 17 Filed 02/07/23 Page 28 of 34
should be treated as intentional and foreclose property common law determining those issues. See, e.g., Ill. Pub. Telcoms. Ass’n v. FCC, 752 F.3d 1018, 1023 (D.C. Cir. 2014) (“we will not read into the statute a mandatory provision that Congress declined to supply”).
Plaintiff’s argument that he is the owner of the Work because it is a work made for hire also fails. See Dkt. 16 at 24–26. The Act sets clear guidance regarding works made for hire. It states that “the employer or other person for whom the work was prepared is considered the author for purposes of this title … .” 17 U.S.C. § 201(b) (emphasis added). The Act defines a “work made for hire” as either (1) a work “prepared by an employee within the scope of his or her employment” or (2) a qualifying work “specially ordered or commissioned” by one or more parties, “if the parties expressly agree in a written instrument signed by them that the work shall be considered a work made for hire.” Id. § 101 (definition of “work made for hire”) (emphasis added).[1] Congress’s use of personal pronouns to refer to the employee’s relationship with the employer indicates that Congress intended such employees to be human, not machines.[2] The “Creativity Machine” is not a person, is not Plaintiff’s employee, and is not Plaintiff’s agent. The work made for hire doctrine does not apply here.
Further, Plaintiff cannot avoid this statutory language by appealing to the Supreme Court’s decision in [[Community for Creative Non-Violence v. Reid|Community for Creative Non-Violence (CCNV) v. Reid]], 490 U.S. 730 (1989). See Dkt. 16 at 26. Plaintiff recites the factors the Court considered but ignores that the Court’s
- ↑ Plaintiff does not claim that the Work satisfies the terms of the second clause in the work made for hire definition (relating to “specially ordered or commissioned” works). Therefore, any argument that the Work was specially ordered or commissioned has been waived.
- ↑ Plaintiff’s argument that computers can be employees for copyright purposes is extraordinary and could have broad implications for employment and tax law. The Court should not construe the term “employee” in a way that would disrupt other established areas of law, such as including inanimate machines in the definition of “employee.”
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