1. NO. 15-1234
__________________________________________________________________
IN THE UNITED STATES COURT OF APPEALS
FOR THE SEVENTH CIRCUIT
__________________________________________________________________
YUSEF LEE
Plaintiff-Appellee/Cross-Appellant
versus
HOOSIER STATE UNIVERSITY
Defendant-Appellant/Cross-Appellee
ON APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE CENTRAL DISTRICT OF INDIANA
The Honorable Gretchen Goode
Civil Action No. 14-CV-6771-GOG
________________________________________________________________
ORIGINAL BRIEF ON BEHALF OF
*HOOSIER STATE UNIVERSITY*
*DEFENDANT-APPELLANT/CROSS-APPELLEE*
________________________________________________________________
Kyle Montrose
11 South Main Street
Redtown, Indiana 45056
317-748-7658
Counsel for Hoosier State University

2. 2
Disclosure Statement
The undersigned counsel of record certifies that the following listed persons have
an interest in the outcome of this case. These representations are made in order
that the judges of this Court may evaluate possible disqualification or recusal.
1. Yusef Lee
2. Hoosier State University
3. Dolores Wexner
Kyle Montrose
Kyle Montrose
Counsel for Hoosier State University

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Table of Contents
Page :
Disclosure Statement.................................................................................................2
Table of Contents.......................................................................................................3
Table of Authorities...................................................................................................5
Jurisdictional Statement...………..…………………………………………………8
Issues Presented for Review………………………………………………………..9
Statement of the Case……………………………………………………………..10
Summary of the Argument………………………………………………………..13
Argument……………………………………………………………………..…...15
Standard of Review.....……………………………..………………………15
I. The trial court correctly held no teacher exception to the
Copyright Act of 1976. ……………………………………….......15
A. Because a federal statute, silent regarding an exception
to, is in direct conflict with a common law exception, the
common law teacher exception is eliminated with the
enactment of the Copyright Act of
1976.……………………....................................................16
B. A teacher exception violates hiring concerns of
universities and impedes academic progression, both
valuable policy concerns appropriate for modern times. ........18

4. 4
II. The trial court erred in holding the work done is outside the
scope of employment because the work for hire is the kind
hired to perform, is created within time and space limits of
employment, and motivated by a purpose to serve the
employer.………………………………………….........................21
A. Lee manifests understanding of requirements implicit to a
broad employment contract and writes the work in the
same manner as others acknowledged as for hire, and
thus, does the kind of work employed to
perform.…………………...................................................22
B. The work-for-hire doctrine may not be avoided by
creating the work outside limits of time and space when
found of the kind. …………................................................25
C. Because appreciable motivation is present when a work
for hire satisfies an employer’s goals, Lee’s work
creation with intent to publish and further career
placement is motivated by a purpose to
serve.………………………................................................ 27
Conclusion.………………………………………………………………………..30
Certificate of Compliance…………………………………………………………31
Certificate of Service...……………………………………………………………32

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Table of Authorities
Page(s) :
Supreme Court Cases:
Alaska Airlines, Inc. v. Brock
480 U.S. 678 (1987)………………………………………………..16, 17, 18
Cmty. for Creative Non-Violence v. Reid
490 U.S. 730 (1989)……………………………………………………18, 21
Pasquantinov. U.S.
544 U.S. 349 (2005)……………………………………………………16, 17
Cases:
Avtec Sys. v. Peiffer
21 F.3d 568 (4th Cir. 1994)………………………………………………...27
Beech v. Hercules Drilling Co., L.L.C.
691 F.3d 566, 569 (5th Cir. 2012) …………………………………………15
DeLee v. City of Plymouth, Ind.,
773 F.3d 172, 174 (7th Cir. 2014) …………………………………………15
Frey v. EPA,
403 F.3d 828 (7th Cir. 2005) ………………………………………………15
Hays v. Sony Corp. of Am.
847 F.2d 412 (7th Cir. 1988)……………………………………………….17
Martin v. City of Indianapolis.
982 F. Supp. 625 (S.D. Ind. 1997)...…………………………………..passim
Molinelli-Freytes v. Univ. of P.R.
792 F. Supp. 2d 164 (D.P.R. 2010)…………………………………….17, 19
Pittsburg State Univ. v. Kan. Bd. of Regents
122 P.3d 336 (Kan. 2005)………………………………………………….17

6. 6
U.S. Auto Parts Network, Inc. v. Parts Geek, LLC.
692 F.3d 1009 (9th Cir. 2012)…………………………………………passim
Roop v. Lincoln Coll.
803 F. Supp. 2d 926 (S.D. Ill. 2011)…………………………………..passim
Sherrill v. Grieves
20 C.O. Bull. 675 (D.C. 1929)……………………………………………..15
Weinstein v. Univ. of Ill.
811 F.2d 1091 (7th Cir. 1987)…………………………………………passim
Statutes:
17 U.S.C. § 101 (1)..…………………………………………………………..18, 21
17 U.S.C. § 201 (b)………………………………………………………………..21
28 U.S.C. § 1291…………………………………………………………………...8
28 U.S.C. § 1331…………………………………………………………………...8
28 U.S.C. § 2201…………………………………………………………………...8
28 U.S.C. § 2202…………………………………………………………………...8
Rules:
Fed. R. Civ. P. 4 (a)………………………………………………………………...8
Fed. R. App. P. 32 (a) (5)…………………………………………………………31
Fed. R. App. P. 32 (a) (6)…………………………………………………………31
Fed. R. App. P. 32 (a) (7) (B)……………………………………………………..31
Other:
Melville B. Nimmer, Nimmer on Copyright § 5.03 (B)(1)(b)(i) (2014)…….passim

7. 7
William F. Patry, Patry on Copyright § 5:71 (West 2015)…………………..passim
William F. Patry, Patry on Copyright § 5:69 (West 2015)……………………….27
Restatement (Second)of Agency § 228 (1958)…………………………………..21
Restatement (Second) of Agency § 235 cmt. a (1958)…...........…………………27

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Jurisdictional Statement
Jurisdiction of the District Court over this matter arose under 28 U.S.C. §§ 1331,
2201, and 2202 as a civil matter arising under federal copyright law, section 101, et
seq., of Title 17 of the U.S. Code. Jurisdiction of this Court is invoked under 28
U.S.C. § 1291, as an appeal from a final judgment of the District Court granting a
motion for summary judgment rendered on December 29, 2014. Notice of appeal
was timely filed in accordance with Rule 4(a) of the Federal Rules of Appellate
Procedureon January 5, 2015.

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Statement of the Case
In May of 2013, Hoosier State, a non-profit university, hired a Visiting
Assistant Professor (VAP) Yusef Lee for a two-year term. (J.A. at 14.) Hoosier
State’s VAP program is a charitable way to facilitate the transfer of those in legal
practice who wish to begin a career in academia. (Id.) The program is mutually
beneficial, allowing the VAP experience and support in the job market, while
increasing the University’s prestige in the academic community. (J.A. at 15, 17.)
The VAP is “expected to actively engage” in the functioning of the law school,
beyond teaching a few courses. (J.A. at 11, 17.) Required engagement includes
creation of publishable academic works for hire. (J.A. at 15.) Publishing one
academic work for hire per year keeps an academic competitive in the post-VAP
job market. (Id.) Inclusion of a star footnote in published articles, an understood
academic norm, benefits Hoosier State through institutional association. (Id.) The
VAP’s published works for hire and latter career placement both function to raise
the University’s profile in the academic community. (Id.)
During his first year as a VAP, pursuant to the satisfaction of employment
obligations, Lee wrote a work-for-hire manuscript entitled, “A Lunar Minefield:
An Overview of Mineral Rights on the Moon.” (J.A. at 7.) Lee states the
manuscript was chiefly created through use of Hoosier State’s time and resources,
but some reading and editing occurred at his home. (J.A. at 8.) The University’s

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resources that Lee used include writing workshops, research accounts, printing
facilities, and faculty mentorship. (Id.) After submission of his manuscript to
faculty members for review and presenting for thirty-minutes on the topic, the
Dean of the law school expressed her approval of the manuscript. (Id.) Dean
Wexner hand-selected the work to be published in the Hoosier State University
Law Journal. (J.A. at 15.)
Unfortunately, rather than showing appreciation for the selection of his
manuscript, Lee claims he did not create the work for hire for his employer’s law
journal, but rather for publication in another law school’s journal. (J.A. at 8.)
Published exposure in a prestigious law journal was hoped to help Lee secure
tenure-track employment at another university. (Id.) Only after the work was
complete did Lee confusedly claim complete ownership of the work for hire. (J.A.
at 16.) Lee’s claim is incorrect as the work for hire was completed within the
scopeofemployment, pursuant to a broad and discretionary employment contract.
Hoosier State University retains copyright ownership. (Id.) Furthermore, no
teacher exception to the Copyright Act of 1976 divests this ownership. (J.A. at 4,
20.) Lee filed a complaint to the United States District Court for the Central
District of Indiana, seeking declaratory judgment pronouncing him the sole owner
of a manuscript he created while employed by Hoosier State. (J.A. at 1-3.) Lee
and Hoosier State submitted cross motions for summary judgment. (J.A. at 6, 13,

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18.) At trial, the District Court found no teacher exception to the Copyright Act of
1976, but granted Lee’s motion for summary judgment, holding the work was
outside the scope of Lee’s employment. (J.A. at 19-22.) This appeal is brought by
Hoosier State University, praying the Court affirm the ruling of no teacher
exception and reverse in part; finding the work for hire is created within the scope
of Lee’s employment with Hoosier State University (J.A. at 23.)

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Summary of the Argument
Hoosier State University hired Yusef Lee as a Visiting Assistant Professor
(VAP). Pursuant to his employment contract, Lee wrote an academic manuscript
within the scope of his employment, as work for hire. According to the Copyright
Act of 1976, Hoosier State owns copyright to the work. Lee contests their right to
publish it. The trial court correctly held no common law teacher exception exists
to the Copyright Act of 1976. This Court should reverse the trial court’s holding
and find the work for hire created within the scopeofLee’s employment.
There is no teacher exception to the Copyright Act of 1976. The Supreme
Court has ruled that subsequent legislative action, speaking directly to a question
addressed by common law, eliminates the common law. The Supreme Court has
also interpreted Congressional silence to mean literal silence and not acceptance of
former law. When Congress passed the Copyright Act of 1976, explicitly
excluding any teacher exception, the common law basis is legislatively eliminated.
There is no teacher exception to the Copyright Act of 1976 so a written work
for hire, created within the scope of employment, vests ownership in the employer.
A work is created within the scope of employment when it is the kind of work
employed to perform, created within the time and space limits, and by at least
appreciable motivation of a purpose to serve the employer. Courts evaluate the
kind of work employed to perform by considering the contract, manifestations of

13. 13
the employee, and manner of completion. Academic employment contracts are
broad. Courts interpret broad contracts by considering the totality of the
circumstances and intent of the parties. Hoosier State employs academics,
intending to benefit from their works for hire. Lee manifests understanding of his
employment obligations by his actions while employed. The manner of Lee’s
work completion is also the same as others for hire. Writing academic works is the
kind of work Hoosier State hired Lee to perform. When and where Lee created the
work is not dispositive when of the kind. A party may not avoid the work-for-hire
doctrine by preparing work outside limits of time and space. Lastly, the work only
has to be created with appreciable motivation to serve the employer. Lee, hoping
to aid himself secure prestigious career placement, created the work with intention
to publish. Academic publishing mandates inclusion of a star footnote. Both the
star footnote and Lee’s latter career placement, benefit Hoosier State through
institutional association. The Dean of Hoosier State University affirms these are
both valuable goals of the VAP program. Lee is appreciably motivated by a
purpose to serve Hoosier State. The work for hire was created within the scope of
employment and no common law teacher exception exists to divest Hoosier State’s
ownership. This Court should affirm in part the ruling of no teacher exception and
find the work for hire created within the scopeofemployment.

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Argument
Standard of Review
This Court reviews a district court’s grant of summary judgment de novo,
construing all facts and reasonable inferences in favor of the nonmoving party.
See, e.g., DeLee v. City of Plymouth, Ind., 773 F.3d 172, 174 (7th Cir. 2014)
(applying de novo standard to district court’s ruling on cross-motions for summary
judgment). The de novo standard is appropriate for reviewing rulings on statutory
interpretation, as well as rulings on scope of employment that turn on legal
conclusions rather than factual disputes. See Beech v. Hercules Drilling Co.,
L.L.C., 691 F.3d 566, 569 (5th Cir. 2012); Frey v. EPA, 403 F.3d 828, 833 (7th
Cir. 2005).
I. The trial court correctly held no teacher exception to the Copyright Act of 1976.
Courts rarely upheld a teacher exception. In the few instances an exception
was allowed, it secured lectures and class materials, not manuscripts or academic
articles for publication. For instance, nearly a century ago, a court presiding upon
a bill of equity, chose to enjoin use of a teacher’s pamphlet made available to
pupils by the employer’s “printery.” Sherrill v. Grieves, 20 C.O. Bull. 675, 687
(D.C. 1929). Long since, the climate of academic employment changed and
university’s interest in the ownership of academic works greatly expanded. The
legislature willingly followed suit through enactment of the Copyright Act of 1976.

15. 15
At bottom, through its sparse existence, a teacher exception was never a blanket
rule allowing academic employees copyright ownership of all works created for
hire.
A. Any common law teacher exception was eliminated with the enactment
of the Copyright Act of 1976 because a federal statute, silent regarding an
exception, is in direct conflict with a common law exception.
The trial court correctly held no teacher exception to the Copyright Act of
1976. In instances where subsequent legislation directly conflicts a question
addressed by common law, the common law is eliminated. Pasquantino v. U.S.,
544 U.S. 349, 359 (2005); see William F. Patry, Patry on Copyright § 5:71 (West
2015). Furthermore, courts apply a rigid rule of textual understanding when
interpreting federal statutes. Congressional silence in legislation is merely silence
and cannot be interpreted any other way. Alaska Airlines, Inc. v. Brock, 480 U.S.
678 (1987).
When a federal statute conflicts with common law, the Supreme Court has
held the common law conclusion eliminated. Pasquantino, 544 U.S. at 359. In a
case regarding the federal wire fraud statute, alcohol smugglers were estopped
from using common law revenue to bar enforcement of foreign tax law. Id. at 368-
72. Respected treatises use the logic in Pasquantino, confirming a common law
exception is eliminated as in direct conflict with the purview of a federal statute.
Patry, supra, § 5:71; Nimmer, § 5.03 (B)(1)(b)(i). Conflict arises, as the Supreme

16. 16
Court held Congressional silence could not be interpreted another way. Alaska
Airlines, 480 U.S. at 686. When addressing the structure of the Airline
Deregulation Act, absence of a severability clause was Congressional silence and
“Congress’ silence is just that, silence.” Id. at 686.
Lee relies on a common law principle, promulgated before and in direct
conflict with the enactment of the federal Copyright Act of 1976. The conflict
arises between where the Act vests ownership in one party and the common law
vests ownership in another. The Copyright Act of 1976 speaks directly to the
question of a common law teacher exception and when silent creates a conflict,
eliminating the common law. See Pasquantino, 544 U.S. at 359. Many courts
have reliably followed precedent when determining a common law teacher
exception, though dubious if ever existed, definitely perished with the enactment of
the Copyright Act of 1976. See, e.g., Pittsburg State Univ. v. Kan. Bd. of Regents,
122 P.3d 336 (Kan 2005); Mollinelli-Freytes v. Univ. of P.R., 792 F. Supp. 2d 164
(D.P.R. 2010).
Courts acknowledging a teacher exception are rare and express their opinion
entirely through dicta. See Patry, supra, §5:71, discussing dicta in Hays v. Sony
Corp. of Am., 847 F.2d 412 (7th Cir. 1988). For instance, Hays, a case regarding a
high school teacher’s word processor manual, is not dispositive or relevant
precedent as only speaking on a teacher exception through dicta. Hays v. Sony

17. 17
Corp. of Am., 847 F.2d 412 (7th Cir. 1988). Also, Alaska Airlines exposes a direct
contradiction by binding precedent with regarding the dicta in Hays. Alaska
Airlines, 480 U.S. at 686. Hays, 847 F.2d at 416-17. Similar to Alaska Airlines, the
Copyright Act of 1976 includes no text regarding a teacher exception to the work-
for-hire doctrine, although other portions of the Act do so when an exception is
meant. 17 U.S.C. § 101 (1) (2012); see Cmty. for Creative Non-Violence v. Reid,
490 U.S. 730, 748-49 (1989). The Supreme Court clearly instructs that
Congressional silence cannot be interpreted as acceptance of former common law,
but is merely silence. Alaska Airlines, 480 U.S. at 686. Following this
interpretation, silence indicates the words of the legislature exist as they are
intended to be. Alaska Airlines, 480 U.S. at 686. Congress passed the Copyright
Act of 1976 without mention of a teacher exception; judicial inclusion of an absent
exception may be seen as a form of judicial legislation. Patry, supra, § 5:71. The
trial court correctly concluded the federal Copyright Act of 1976 eliminates a
common law teacher exception by silence in statutory language.
B. A teacher exception violates hiring concerns of universities and impedes
academic progression, both valuable policy concerns appropriate for modern
times.
A ruling on the facts presented must be made in light of greater policy
implications to interested parties. Even where facts lead to sympathy for one party,
courts consider the precedential effect to understand the broader implications of a

18. 18
specific ruling. An exception to copyright ownership, specially tailored for
teachers and academics, would have a striking effect on educational institutions.
Universities have a large interest in the ownership of their academics’ work for
hire. Molinelli-Freytes, 792 F. Supp. at 171-72. Denial of work-for-hire
ownership would drastically change the climate of academia, dis-incentivizing
university hiring practices and impeding academic progression.
The allowance of a teacher exception would undermine university hiring
practices and impede academic progression. Contemporary universities frequently
include contract clauses and maintain policies dictating ownership of works for
hire. Molinelli-Freytes, 792 F. Supp. at 172; Weinstein v. Univ. of Ill., 811 F.2d
1090 (7th Cir. 1987); see also, Patry, supra, § 5:71. Ownership allows universities
to hire academics under conditions otherwise fiscally irresponsible in any other
industry. Were a teacher exception to govern these relationships, the result would
be catastrophic for academic progression. A teacher exception would further a
“chilling” effect as universities would be dis-incentivized from hiring academics to
conduct exploratory works on their payroll. Not only lowering employment rates,
but forcing universities to reconsider their ability to function as research
institutions.
Non-profit universities take fiscal and reputational risks when hiring
fledgling academics to instruct students and participate in their collegiate

19. 19
atmosphere. A benefit universities receive from such a tentative relationship is
copyright ownership of their academics’ work for hire. (J.A. at 15.) Ownership
allows the university freedom to publish without dispute. Legal disputes over
copyright can be expensive, so it is in the non-profit’s best interest to avoid them.
Furthermore, it is only natural that more disputes will arise when works are of high
quality. Therefore, high quality works will be tied up in litigation and the benefit
will be unavailable to take advantage of. This is against a university’s interest and
would detract from the ability to take the risk of hiring young academics, impeding
academic progression.
Hoosier State University gratuitously selected Lee to be their risk for a two-
year term. (J.A. at 14-15.) The benefit to be realized by the University was
advancement of their brand through academic works. (J.A. at 14-15, 17.) While
the University expected to publish Lee’s work for hire, they were forced to enter a
legal dispute to determine ownership. (J.A. at 1, 16.) Knowledge of a valid
teacher exception would deter Hoosier State University from hiring any VAP in
the capacity it did. Indeed, it would deter Hoosier State, and other universities
similarly situated, from functioning in a research capacity all together.
Consequently, judicial recognition of a teacher exception would have a profound
effect. Academics would no longer have ability to conduct research for
publication, impeding academic progression. Policy concerns backing the scant

20. 20
existence of a teacher exception are no longer applicable in modern times.
Molinelli-Freytes, 792 F. Supp. at 172. The trial court correctly ruled in favor of
university hiring and academic progression by holding no teacher exception; a
federal statute, silent regarding an exception is in direct conflict with a common
law exception and therefore preempts it.
II. The trial court erred in holding the work done is outside the scope of
employment because the work for hire is the kind hired to perform, is created
within time and space limits of employment, and motivated by a purpose to serve
the employer.
Copyright ownership of a work made for hire vests in the employer,
providing ownership of “all of the rights,” unless the parties have “expressly
agreed otherwise” in a written agreement. 17 U.S.C. § 201(b) (2012). A work
made for hire is defined as “a work prepared by an employee within the scope of
his or her employment.” Id. §101 (1) (2012). Whether work is done in the scope
of employment, is based on principles of common law agency. Cmty. for Creative
Non-Violence v. Reid, 490 U.S. 730, 740-41 (1989). Work is within the scope of
employment when it (A) is of the kind employed to perform, (B) occurs
substantially within the authorized time and space limits, and (C) is actuated, at
least in part, by a purpose to serve. Restatement (Second) of Agency § 228 (1958);
see also U.S. Auto Parts Network, Inc. v. Parts Geek, LLC, 692 F.3d 1009, 1015
(9th Cir. 2012); Roop v. Lincoln Coll., 802 F. Supp. 2d 926, 936 (S.D. Ill. 2011).
Courts interpret the requirements as conjunctive to prove the scope of an

21. 21
employee’s work. Melville B. Nimmer, Nimmer on Copyright § 5.03 (B)(1)(b)(i)
(2014). Lee’s manuscript is a work for hire created within the scope of his
employment.
A. The manuscript was the kind of work Lee was employed to perform
because he manifested understanding of requirements implicit to broad
employment contracts and wrote the work in the same manner as others
acknowledge as for hire.
The trial court erred in holding Lee’s academic manuscript was not the kind
Hoosier State University employed him to create. Courts apply a flexible rule with
regard to kind of work, considering the totality of circumstances. Courts determine
what kind of work an employee is hired to perform by evaluating the employment
contract, manifestations showing an employee understood the requirements, and an
employee’s manner of completion. See Weinstein v. Univ. of Ill., 811 F.2d 1091
(7th Cir. 1987); Martin v. City of Ind., 982 F. Supp. 625 (S.D. Ind. 1997), aff’d,
192 F.3d 608 (7th Cir. 1999); Roop v. Lincoln Coll., 803 F. Supp. 2d 926 (S.D. Ill.
2011). Respected treatises state the concept of “publish or perish,” means the
creation of publishable works is integral to any academic’s duties, concluding most
academic works are the kind employed to perform. Nimmer, supra, § 5.03
(B)(1)(b)(i).
The nature of academic employment obligates a broad contract. Specific
aspects of topic, deadline, style, and general involvement in any university, are in
constant ebb and flow; universities simply cannot be held to the four corners of

22. 22
their employment contracts. Courts interpret broad contracts by considering the
intent of the parties.
Courts hold that an employee is doing the kind of work he or she was hired
to perform if the employee exhibits an understanding that the work was required
even if it was not explicitly in the employment contract. E.g., Roop v. Lincoln
Coll., 803 F. Supp. 2d 926; Weinstein v. Univ. of Ill., 811 F.2d 1091. In Roop,
Lincoln College’s coordinator of a certificate program created bachelor degree
curricula. Roop, 803 F. Supp. 2d at 929. At the time the curricula went into effect,
plaintiff was no longer an employee. Id. The court granted Lincoln College’s
motion for summary judgment over the plaintiff’s contentions of copyright
registration. Id. at 938. The plaintiff’s manifestations determined she understood
the creation of academic materials was the kind of work she was hired to complete.
Id. at 936. The court in Weinstein extended further, stating the Copyright Act of
1976 is broad enough to encompass every academic work. Weinstein, 811 F.2d at
1094 (lack of publication is adequate justification for termination). Respected
treatises affirm the Weinstein interpretation, showing the academic community
accepts and helped draft the statute’s purview. Patry, supra, § 5:71.
Kind of work has also been held when work is created in the same manner as
other works acknowledged for hire. Martin v. City of Indianapolis at 634-35. In
Martin, an employee of a metal fabricator created a large sculpture. Id. at 628.

23. 23
The employee’s normal role was translating customer designs into a form
appropriate for metal, the construction of which was done by other employees. Id.
at 634. In the case of the sculpture, the employee designed and constructed the
entire thing himself with limited help. Id. The employee’s function was normally
only part of the overall completion, so creation of an entire work was not the kind
of work employed to perform. Id.
Hoosier State University hired Lee as a full-time employee to teach agreed-
upon courses and engage in the functioning of the law school. (J.A. at 11-12, 17.)
The job posting describes the functions as attending faculty-writing workshops,
where research and works are shared and presented among other activities. (J.A. at
17.) The contract states resources are provided for conducting research,
understood pursuant to drafting works for hire. (J.A. at 11-12.) Lee used all the
resources provided to him while drafting the manuscript. (J.A. at 8.) Indeed, he
sent a copy of his manuscript to the entire faculty, pitched his idea to an academic
audience for thirty minutes, did all research through accounts provided by the
University, and engaged in writing workshops. (J.A. at 8.) These actions taken by
Lee are exactly the kind of work Hoosier State hired him to perform, pursuant to
the creation a work for hire. Akin to Roop, Lee’s actions while employed manifest
his understanding of employment requirements. Roop, 803 F. Supp. 2d at 936.
The contract broadly states these requirements, but Lee’s actions show he

24. 24
understood the required means provided were in place to facilitate creation of an
academic work for hire.
Like many academics, the way a VAP works is largely discretionary, solo,
and unregulated. Just as the contract allows Lee broad discretion with regard to
classroom materials or projects assigned to students, no parameters exist for the
work for hire. (J.A. at 11-12.) Merely, akin to Weinstein, as an academic, Lee
should publish articles or perish, to remain competitive in the market for post-VAP
position. (J.A. at 15.) Weinstein, 811 F.2d at 1094. Furthermore, though Lee is
hired to be a team member of the faculty, his day-to-day conduct is companionless.
Therefore, analogous to Martin, when Lee chose the academic topic and completed
the project alone, without instruction, he was not straying from the normal manner
of work completion. Martin, 982 F. Supp. at 634-35. Lee, an academic of Hoosier
State University, was hired to teach and engage in academia throughout the law
school. (J.A. at 11-12, 17.) Creation of publishable works for hire is inherently
part and parcel of these employment duties in academia. Nimmer, supra, § 5.03
(B)(1)(b)(i). The trial court erred in holding the work was not the kind Lee was
employed to perform.
B. When kind of work is found the work-for-hire doctrine may not be
avoided by creating the work outside limits of time and space.
The trial court erred by not affirmatively stating the work was done within
limits of time and space. When like kind is found, a party may not avoid the work-

25. 25
for-hire doctrine by preparing the work during non-working hours. Martin, 982 F.
Supp. at 634. This is especially appropriate for occupations with little structure.
U.S. Auto Parts, 692 F.3d at 1018.
When an employer does not enforce structured working hours or specify a
location for work completion, the scope of time and space is broadened. Id. In
U.S. Auto Parts, plaintiff worked for a small informal business that did not
differentiate between work hours and off hours. Id. The plaintiff’s employer also
did not enforce a location for work completion, allowing work to be done at the
employees’ discretion. Id. The court followed precedent putting little weight on
time and space limits because the employee’s work was of the kind. Id.
Furthermore, even if both parties to an ownership dispute agreed the work was
substantially done beyond the limits of time and space, it is not dispositive.
Martin, 982 F. Supp. at 634. Many courts affirm the work-for-hire doctrine cannot
be avoided by time and location of completion. E.g., U.S. Auto Parts, 692 F.3d at
1018; Martin, 982 F. Supp. At 634.
In the instant case, Lee concedes to have done research and writing in his
Hoosier State University office. (J.A. at 7-8.) Where Lee contends to have
completed reading and editing outside the formal bounds of work time and office
space, it is irrelevant when of the kind employed to perform. (J.A. at 8.) Martin,
982 F. Supp. at 634. The nature of Lee’s employment is such that attendance in his

26. 26
office is not required, significantly broadening the scope of time and space. (J.A.
at 8, 11, 17.) U.S. Auto Parts, 692 F.3d at 1018. The trial court erred by not
affirmatively stating the work was done within the time and space limits of Lee’s
employment with Hoosier State University.
C. Lee created the manuscript with motivation to serve his employer because
his desire to publish and further career placement benefits Hoosier State
University.
The trial court erred by holding the work was not motivated, at least in part,
by a purpose to serve Hoosier State University’s goals. The employee’s state of
mind is a major factor when determining motivation. Martin, 982 F. Supp. At 634.
See also Restatement (Second) of Agency § 235 cmt. a (1958). The employee only
has to be “appreciably” motivated by a desire to further the employer’s goals and
serve their needs. Avtec Sys. v. Peiffer, 21 F.3d 568, 572 (4th Cir. 1994). Martin,
982 F. Supp. at 634. See also William F. Patry, Patry on Copyright § 5:69 (West,
2015), discussing Avtec Sys. v. Peiffer, 1995 U.S. App. LEXIS 25901, *14-16. A
low bar, the rule only requires some motivation toward a purposeto serve.
An employee, who works on a project for hire with the mindset of aiding the
employer, has motivation of a purpose to serve. U.S. Auto Parts, 692 F.3d at 1018-
19. In U.S. Auto Parts, the employee created software systems to aid the
distribution needs of his employer. Id. at 1012. The original version was
specifically requested, but later versions were created and modified on the

27. 27
employee’s own impetus, with some sporadic supervision. Id. The court found the
creation of un-requested versions was motivated at least in part by a purpose to
serve the employer, providing the employer with something needed. Id. at 1018-
19.
Further, an employee working to promote the goals of an employer is
appreciably motivated by a purpose to serve. Martin, 982 F. Supp. at 634-35. The
court in Martin held the work was not created to promote goals of the employer,
but only as a personal hobby. Id. Had the plaintiff advanced advertisement or
commercial interests, created the work for compensation from the employer, or not
been an avid artist before the creation of the work, appreciable motivation would
have been found. Id.
Lee did not write the manuscript as a personal hobby, but rather to further
his career goals. (J.A. at 7-8.) Lee intended to publish the manuscript in a
prestigious law journal other than the Hoosier State Law Journal. (J.A. at 8.) He
hoped to aid his tenure-track career placement following his VAP term by gaining
exposure in a prestigious journal. (J.A. at 8-10.) However, his intended journal of
publication does not indicate a lack of motivation to serve Hoosier State. See U.S.
Auto Parts, 692 F.3d 1009. Dean Wexner states career placement of the VAP is
“beneficial,” spreading the brand of the University and is a flagship goal of the
program. (J.A. at 15-16.) Furthermore, the understood norm in academia is to

28. 28
include a star footnote, indicating the author’s affiliation with a university. (J.A. at
15-16.) Consequently, it does not matter in which journal Lee intended to publish;
the star footnote would work to further the organizational goal of spreading the
brand of Hoosier State University. (J.A. 15-16.) Lee’s state of mind when
completing the manuscript was appropriately disposed to aid his employer spread
their brand, and achieves the goals of the VAP program and Hoosier State. U.S.
Auto Parts, 692 F.3d at 1018-19. Analogous to Martin, Lee was not an academic
before working for Hoosier State and was paid for his VAP term. Martin, 982
F.Supp. at 634-35. Where Lee creates a work for hire and satisfies his employer’s
objectives, particularly advertisement and commercial goals, his actions are
“appreciably” motivated by the purpose to serve. Id. The trial court erred in
holding the manuscript was not motivated by a purpose to serve Hoosier State
University. The trial court erred in holding the work for hire was not created
within the scope of employment, vesting copyright ownership in Hoosier State
University.

29. 29
Conclusion
For the foregoing reasons, Hoosier State University respectfully requests
that this Court affirm in part the judgment of no teacher exception and reverse in
part, find the work for hire created within the scopeof employment.
Respectfully submitted,
Kyle Montrose
Kyle Montrose
Counsel for Hoosier State University
11 South Main Street
Redtown, IN 45056
317-748-7658
Date: April 10, 2015

30. 30
Certificate of Compliance
This brief complies with the type-volume limitation of Fed. R. App. P.
32(a)(7)(B) because this brief contains 5,732 words.
This brief complies with the typeface requirements of Fed. R. App. P.
32(a)(5) and the type style requirement of Fed. R. App. P. 32(a)(6) because this
brief has been prepared in a proportionally spaced typeface using Microsoft Word
in fourteen point Times New Roman font.
Kyle Montrose
Kyle Montrose
Counsel for Hoosier State University
Date: April 10, 2015

31. 31
Certificate of Service
I hereby certify that one true and correct copy of the Original Brief on
Behalf of Hoosier State University has been served upon the following counsel of
record:
Sue Yerpanzof
119 E. High Street
Hawktown, IN 45056
317-867-5309
Kyle Montrose
Kyle Montrose
Counsel for Hoosier State University
Date: April 10, 2015