## Facts

- Stanley Kauffmann wrote film reviews for *The New Republic* (TNR) for decades under an oral, non-employee relationship.
- In 1999, Kauffmann wrote and TNR published 44 film reviews later claimed by his Estate.
- In 2004, TNR’s literary editor sent Kauffmann a letter stating the parties had “always understood” Kauffmann’s articles to be “works made for hire” and asked him to confirm that understanding for past and future works; Kauffmann signed the letter.
- After Kauffmann’s death in 2013, Rochester Institute of Technology (RIT), through an affiliated press, published an anthology including 141 Kauffmann reviews, including the 44 reviews from 1999.
- The Estate registered copyrights in the 44 reviews and sued RIT for infringement, alleging unauthorized republication.
- RIT argued TNR owned the copyrights because the reviews were works made for hire and impleaded the anthology editor; a default was entered against the editor.
- The district court granted summary judgment to RIT, concluding the 2004 letter memorialized a long-standing work-for-hire arrangement and barred the Estate’s claim.
- The Estate appealed.

## Issues

1. Whether 44 independently created magazine reviews by a non-employee qualified as “works made for hire” under 17 U.S.C. § 101(2) based on a letter agreement signed years after creation.
2. Whether a post-creation writing can satisfy § 101(2)’s signed-writing requirement absent evidence of a contemporaneous mutual understanding that the works were for hire.
3. If the reviews were not works made for hire, whether the author (and thus his Estate) owned the copyrights and had standing to sue for infringement.

## Decision

- The Second Circuit reversed the summary judgment for RIT and remanded.
- The court held the 44 reviews were not works made for hire because the signed letter was executed long after the works were created and no limited circumstances justified treating it as satisfying § 101(2).
- The court concluded Kauffmann was the “author” of the 44 reviews and his Estate owned the copyrights as successor in interest.

## Legal Principles

- For non-employee works, “work made for hire” status under 17 U.S.C. § 101(2) requires an express written instrument signed by both parties designating the work as made for hire.
- A writing executed after creation generally does not establish work-for-hire status; only limited circumstances may allow a later writing to satisfy § 101(2), requiring clear proof of a shared, pre-existing intent at the time of creation.
- A post-creation document may operate as a transfer of copyright if it meets statutory transfer requirements, but it does not retroactively convert an independently authored work into a work made for hire absent the narrow conditions recognized in circuit precedent.
- If a work is not made for hire, the individual creator is the statutory author under § 201(a), and copyright ownership passes to the creator’s successor upon death.

## Conclusion

Because the record lacked evidence of a contemporaneous mutual understanding that the 1999 reviews were created as works for hire, the later-signed letter could not retroactively satisfy § 101(2), leaving authorship and ownership with Kauffmann and, after his death, with his Estate; the infringement case against RIT was remanded for further proceedings.


Estate of Kauffmann v. Rochester Inst. of Tech., 932 F.3d 74 (2d Cir. 2019)