The Fifth Circuit recently addressed the issue of copyright ownership in its unreported decision in Pritchett v. Pound, civil action 05-41445 (5^th Cir. 2005). In 1981 Ronald Pound was hired by Pritchett, L.P., a business consulting firm founded by E. Price Pritchett. The employment contract provided that he was responsible for “completing regular written assignments and development of new products and procedures.”   It also stated that, “[s]hould the Employee produce any written materials in the course of his work with the Employer, then such shall be done for and on behalf of Employer and all work produced shall be the exclusive property of the Employer.”

In the late 1980’s, Pritchett began offering a line of handbooks to supplement his consulting services, two of which were written by Price Pritchett and Ronald Pound. Pritchett, L.P. paid all expenses associated with writing, publishing, and promoting the books. Pritchett, L.P. applied to register the copyrights in the two books. The administrative staff member completed the form stating that Price Pritchett and Ronald Pound are the books’ authors and checked “no” in designating whether the books were works made for hire. Additionally, as to one of the books, the certificate listed these two individuals as the copyright claimants. A staff member signed the certificate for Price Pritchett, while Ronald Pound signed it on his own behalf.

Ronald Pound died in1995.   Thereafter, in 2002, Nancy Pound sued Pritchet alleging co-ownership of the books. That action was subsequently dismissed. Thereafter, Pritchett filed this suit in the Eastern District of Texas seeking a declaratory judgment that it is the sole owner of the copyright in the two books. The Fifth Circuit affirmed the district court’s ruling that Pritchett is the sole owner of the books. The employment agreement specifically provided that written materials are the exclusive property of the employer. The books were therefore “made for hire” because Pritchett and Pound did not expressly agree otherwise by written instrument. See 17 U.S.C. §201(b).

Additionally, the Court held that the registration form is not a written agreement changing the employment relationship between the parties. The fact there was an error by the administrator in filling out the registration application does not change the nature of the employment relationship or ownership of the copyright. Although the certificate of registration can be prima facia evidence of ownership, this can be rebutted and was in this case. The Court also held that the errors in the certificate did not effectuate some type of transfer of the copyright. 17 U.S.C. § 204 states that a transfer of ownership is not valid unless an instrument of conveyance or a note or memorandum of transfer is in writing signed by the owner of the rights conveyed. The registration certificate did not satisfy this requirement as it did not reference a transfer or any intent to convey ownership.

The Fifth Circuit also affirmed the district court’s ruling finding Ms. Pound liable for attorney’s fees. 17 U.S.C. 505 provides that the court may allow the recovery of costs and award attorney’s fees to the prevailing party as part of costs. The district disagreed with Ms. Pound and concluded that this section is not limited to infringement claims since a determination as to ownership is a “civil action under this title”. The Fifth Circuit stated that in view of this often vexatious litigation over a long and tortured procedural history, with charges of fraud being made, the district court had discretion to award reasonable fees to Pritchett. The court did not question the reasonableness of the amount awarded.