- a work prepared by an employee within the scope of his or her employment; or
- a work specially ordered or commissioned for use as:
- a contribution to a collective work
- a part of a motion picture or other audiovisual work
- a translation
- a supplementary work
- a compilation
- an instructional text
- a test
- answer material for a test
- an atlas
If the parties expressly agree in a written instrument signed by them that the work shall be considered a wok made for hire…”
According to the case when Parker researched the state campaign financing statues, he determined that “it was a crime (a misdemeanor) to make a contribution in excess of $500 or to make a contribution “through or in the name of another, directly or indirectly.” A candidate convicted of accepting a contribution in excess of the legal limit was barred from taking office. A business which violated the campaign financing statutes could be fined or even dissolved, and anyone who aided, abetted, or advised in violation of the statue was also guilty of a misdemeanor.” (5)
The case states that “Parker read the contract as giving the firm ownership of the research, and implicitly, the right to resell it after the client’s campaign ended.” (6) In trying to support Parker’s assumption, the case states that “the research carried no copyright notice” (6). However, according to Anderson, Fox, Twomey, and Jennings, “it is no longer mandatory that works published after March 1, 1989 contain a notice of copyright.” (393)
What does support Pat Parker’s assumption that the firm owns the research is that nowhere in Exhibit 8 Agreement for Campaign Research and Consulting Services is it expressly stated that this is a “work for hire” agreement. Further, the agreement limits the campaign’s usage of the reports. If the campaign did in fact have a copyright to the reports, then there would be no limitation on the usage of the reports.
As far as the ownership of the postcard drafts, these belong to the campaign if the agreement with the direct-mail consultant was a work-for-hire agreement. Otherwise, the postcards belong to the direct-mail consultant. Even though the consultant used Parker’s research, “a copyright does not prevent the copying of an idea but only the copying of the way the idea is expressed. That is, the copyright is violated when there is a duplicating of the words, pictures, or other form of expression of the creator but not when there is just use of the idea those words, pictures, or other formats express.” (Anderson, Fox, Twomey, & Jennings 392)
Based on the data provided and limited understanding of the legal rules, Pat Parker & Associates owns the reports created for Dale Jackson for Attorney General Campaign. Therefore, Pat Parker has according to Copyright Basics (Circular 1) the “exclusive right to do and to authorize others to do the following:
- To reproduce the work in copies or phonorecords;
- To prepare derivative works based upon the work;
- To distribute copies or phonorecords of the work to the public by sale or other transfer of ownership, or by rental, lease, or lending;”
As far as whether selling the reports to the State Academy of Trial Lawyers would violate the state campaign financing statutes, Parker is merely speculating about what the lawyers will do with the report. According to the case “Parker really didn’t know how the research would be used or whether the lawyers would even give it to the campaign.” (5)
Ethical Analysis Model
The ethical issues in this case are Pat Parker & Associates duties to its employees, and customers. Pat Parker & Associates has given the appearance that the firm works for Democrats-only yet is considering selling a report to the State Academy of Trial Lawyers that would likely benefit Republicans. According to the facts in the case, the word-of-mouth advertising that has enabled the firm to be so successful has been by Democrats and the firm’s Democrats-only stance has improved its professional appearance. In the case, there is a quote from an interview with Leslie Kent, in which Parker states that “Leslie, of course I would never work for a Republican!” (3) Parker then goes on to say “I’ve been lucky that my personal and business interests coincide. A Republican has never made me a serious bid. I expect it’s coming someday, but so long as the Democratic Party and I are able to maintain our mutually beneficial relationship, I don’t anticipate seeing my firm listed on the treasurer’s report of a Republican candidate.” “I also think that working for Democrats-only enhances the professional appearance of my business. It’s not like I’m a mercenary and will work for anyone. I think it helps me with my Democratic clients. They see me as being loyal to the party, even though I will work against another Democrat in a primary election.”” (3) Selling the report to a pro-Republican group could negatively affect the firm’s loyal appearance and its relationship with its customers. This would then negatively impact its employees.
Pat Parker & Associates would be failing in the firm’s duties to its employees by violating state campaign financing statutes. In reviewing the following statement, it could be argued that Parker had enough political experience to know what the trail lawyers would do with the report if he sold it to them and that the firm would in fact be violating state campaign financing laws. “Parker really didn’t know how the research would be used or whether the lawyers would even give it to the campaign. Thus, it seemed, on reflection, highly unlikely that Parker could be charged with violating state campaign financing laws should the trial lawyers group attempt to channel the research to the candidate in a way that was less than entirely above board.” (Pat Parker & Associates 5)
Ethically Pat Parker & Associates should not sell the report to the State Academy of Trial Lawyers. The firm has created a niche catering to Democrats and will be endangering its future by violating the trust that Democrats have in the firm. Additionally, the possibility that this action could violate the state campaign financing laws; thereby endangering the future of the firm and its reputation, leads one to believe that Parker should pass on this opportunity to make a quick buck.
Works Cited
Anderson, R., Fox, I., Twomey, D., & Jennings, M. (1998). (13th Ed.). Business Law and the
Regulatory Environment. Cincinnati: West Educational Publishing Company
“Copyright Basics (Circular 1) U.S. Copyright Office. 3 Oct. 2004
Harvard Business School. Pat Parker & Associates. Boston: Harvard Business School
Publishing, 1992.
