Estate of Kauffmann v. Rochester Institute of Technology

United States Court of Appeals for the Second Circuit · Contracts

ContractsCopyrightWork made for hirework made for hirecopyright ownershipindependent contractorcollective workwritten instrument

Facts

Stanley Kauffmann wrote numerous articles for The New Republic over many years, and the parties agree he was never its employee. The 44 articles at issue were written in 1999 for publication in the magazine, a collective work. In 2004, five years later, Kauffmann and the magazine signed a letter stating that their oral understanding had always been that all of his articles for the magazine were works made for hire because of their compensation arrangement. After Kauffmann's death, RIT published an anthology including the 44 articles, and the Estate sued for infringement.

Issue

Whether the 2004 letter agreement, signed five years after the articles were written, satisfied 17 U.S.C. § 101(2)'s requirement that the parties expressly agree in a signed written instrument that the commissioned works shall be considered works made for hire. More specifically, the question was whether this delayed writing could make Kauffmann's 1999 articles works made for hire even though he was not an employee.

Rule

For commissioned works under 17 U.S.C. § 101(2), the parties must expressly agree in a signed writing that the work shall be considered a work made for hire. In the Second Circuit, a writing executed after creation may satisfy the statute only in limited circumstances when it confirms a prior explicit or implicit pre-creation agreement and resembles incomplete paperwork finalized shortly after creation; a writing signed years later without such special circumstances does not satisfy the statutory writing requirement.

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In Chicago, freelance essayist Nora Patel wrote ten restaurant columns in 2021 for Lakefront Review, a monthly magazine. She was never an employee. In 2025, after a dispute with a republisher, Nora and the magazine signed a letter stating that they had always orally understood all her columns to be works made for hire.

If Nora's successor later sues the republisher for infringement, what is the strongest argument about ownership under the governing rule?

Explanation. For a commissioned contribution to a collective work by an independent contractor, the parties must expressly agree in a signed written instrument that the work will be considered a work made for hire. A post-creation writing may suffice only in limited circumstances where it confirms a prior pre-creation agreement and functions like paperwork completed shortly after creation. A single letter signed years later, even if it recites a prior oral understanding, does not satisfy the requirement.