Date: Wed, 23 May 2018 23:32:38 -0400

I could be wrong, but I've always assumed that textbook publishers used the
"work made for hire" model because it is explicitly included in the definition
of what can count as "specially commissioned" works under the second prong of
the definition (the first referring to the status os the author as an
employee): "instructional text" means textbook, does it not? 
https://www.copyright.gov/circs/circ09.pdf

The reasons are several: many textbooks have multiple authors and involve lots
of other contributors as well, such as photographers, illustrators, etc., which
make their creation and production more akin to a company making a movie than
an individual author writing a book.  There is of course a spectrum, with some
single-authored scholarly monographs being used as textbooks, but the real
money lies in the introductory texts that can often be very elaborate team
productions.  Movies are works made for hire for similar reasons.

But I agree that this case probably turns on contractual language more than any
copyright issues.  It reminds me of a case maybe a dozen years ago when one
publisher sued another because of its issuing ebook editions of works it had
published without permission because the defendant publisher claimed that the
originating publisher's contract did not contain language explicitly (enough)
foreseeing the development of ebooks. I wish I could recall the name of that
suit, which seems very relevant to this one (and could serve as precedent since
I believe it was also decided in the Second Circuit). I'm cc'ing Allan Adler of
the AAP because he undoubtedly remembers the case.



On Wed, May 23, 2018 10:16 PM LIBLICENSE <[log in to unmask]> wrote:
>
>From: "Hinchliffe, Lisa W" <[log in to unmask]>
>Date: Wed, 23 May 2018 01:54:38 +0000
>
>The court filing that includes the claim of the grounds for the lawsuit is
>linked from the IHE piece. The way I read it is that the dispute is that
>Cengage contracted to pay royalties using a specific approach and is now
>asserting a different approach that isn't in the contract (which results in
>lower payment to authors).  Copyright isn't the issue but rather terms of
>payment. With the usual "I am not a lawyer" caveat ... Lisa
>
>
>-------- Original message --------
>From: LIBLICENSE <[log in to unmask]>
>Date: 5/22/18 8:06 PM (GMT-06:00)
>To: [log in to unmask]
>Subject: Re: New models for textbook licensing -- controversy
>
>From: SANFORD G THATCHER <[log in to unmask]>
>Date: Tue, 22 May 2018 00:54:59 -0400
>
>What's confusing to me here is the authors' demand that Cengage ask their
>permission to include their textbooks in the subscription model. My
>understanding is that textbooks are created as "works made for hire," which
>means that the publisher owns the copyright, not the author(s). So on what
>grounds are the authors demanding that Cengage seek their permission?  It's
>unfortunate that the article Jim linked to does not stipulate or cite what
>term(s) of the contract are under dispute. Cengage obviously believes that
>its contract does give it authority to include the textbooks in this service.
>I'd be surprised if Cengage's lawyers did not write the contract in such a way
>as to make this subscription service possible to implement in the way it has.
>But I guess we'll have to wait and see how a court looks at the dispute.
>
>Sandy Thatcher