ON PETITION FOR REHEARING AND PETITION FOR REHEARING EN BANC.
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The petition for rehearing is GRANTED, this panel's opinion of November 23, 1977, 5 Cir., 563 F.2d 773, is withdrawn, and the following is substituted in lieu thereof.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.
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.
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
This Court has apparently not been called upon to apply the doctrine,
An employer is entitled to the copyright only when the work was created by the employee within the scope of his
This doctrine is inapplicable in the absence of an employment relationship, and appellant strongly urges that such a relationship does not exist. We disagree, for the facts, viewed in a light most favorable to appellant, indicate otherwise. These determinative facts were placed before the district court by means of the pleadings, affidavits, and depositions. Under these circumstances, summary judgment is appropriate. See Famous Music v. Bay State Harness Horse Racing & Breeding Ass'n, 554 F.2d 1213 (1 Cir. 1977).
Defendant Gelderman originated the New Orleans menu book project and initially approached Murray about working on it. Murray definitely expected to be compensated for her services in producing the book, though the details of that compensation arrangement are in dispute. The book was published at the insistence of the corporation, which absorbed all costs of publication and reimbursed Murray for out-of-pocket expenses. The corporation also gave her editorial control of the project, without which she would not have taken on the task. It is abundantly clear that Murray was not working for herself, but rather for the corporation.
Murray contends that she alone had control over the contents, format, and production of the menu book, and that the element of employer oversight is missing. Professor Nimmer has labeled this factor as "crucial" in "determining an employment relationship ...." Nimmer on Copyright § 62.2 (1976). Murray would not take the author's job unless she was given editorial
Appellant also seems to argue that the existence of disputes surrounding the method of compensation and the precise nature of the relationship between the parties precludes summary judgment. The simple answer to this contention is that neither of these disputed facts has any bearing whatsoever on the pivotal issue of the existence of an employment relationship.
Running through appellant's briefs, pleadings, and motions in this case seems to be the thread tying together her theory of this case: that she is entitled to the copyright because she is the book's author. This notion indicates a fundamental misconception of the law in this area. The fact that appellant authored the book in the technical sense is immaterial under the works for hire doctrine, which defines the employer as author for purposes of copyright law. We accept as true Murray's allegations that she wrote the book and performed various creative, editorial, and promotional tasks. But once we conclude, as we do here, that an employment relationship existed, these facts become irrelevant.
No facts alleged by appellant suggest that the parties intended for the copyright to be in the appellant. She has thus failed to overcome the presumption that the mutual intent of the parties is that the title to the copyright shall be in the employer.
No member of this panel nor Judge in regular active service on the Court having requested that the Court be polled on rehearing en banc, (Rule 35, Federal Rules of Appellate Procedure; Local Fifth Circuit Rule 12) the Petition for Rehearing En Banc is DENIED.