Twentieth Century Fox Film Corp. v. Entertainment Distributing

General Dwight D. Eisenhower’s fascinating written account of World War II is the subject of a more mundane, present day battle over the copyright to that now famous book, Crusade in Europe. Dastar Corporation (“Dastar”) appeals the district court’s judgment in favor of Twentieth Century Fox Film Corporation (“Fox”), SFM Entertainment LLC, and New Line Home Video, Inc., (collectively, “Twentieth Century Fox Parties”), finding that Dastar infringed protected copyrights to Crusade in Europe, and the court’s subsequent award of attorneys’ fees and costs to Twentieth Century Fox Parties. We affirm.

I

The district court entered judgment following a bench trial, and we set forth the pertinent facts in the light most favorable to the prevailing parties.

General Eisenhower served as Supreme Commander of the Allied Expeditionary Forces during World War II, following his service as Commander of the U.S. troops in Europe. Upon the surrender of the German military forces in 1945, numerous publishers approached General Eisenhower, offering him the opportunity to publish his memoirs about the war. General Eisenhower, however, spurned all such offers until Doubleday president Douglas Black…

dissenting.

I respectfully dissent from the opinion of my colleagues. I do not agree that Eisenhower and Doubleday intended Crusade in Europe to be a “work-for-hire” under the 1909 Copyright Act. Given the state of copyright law at the time that Eisenhower and Doubleday entered their agreement, I do not believe the parties intended that the work be “for hire” as that term was then understood. Furthermore, the contract between Eisenhower and Doubleday, the tax treatment that Eisenhower received for the manuscript, and the evidence in the record that several publishers were offered the opportunity to compete for the right to publish Eisenhower’s manuscript point to one conclusion only: that Eisen *886 hower sold Doubleday a product, not his services. Thus, I conclude that Crusade in Europe was not written as a work for hire, and accordingly would reverse the district court judgment in favor of Doubleday.

As the majority explains, the 1909 Copyright Act does not contain a definition for the term “work-for-hire.” The majority describes how courts have developed the ’ doctrine establishing the meaning of the term, and how that doctrine has evolved to encompass a broader range of…