In Lewis v. Activision Blizzard, Inc., --- Fed. Appx. ---- (December 18, 2015) dealt with the question of whether voiceover "baby murloc" recordings made by an employee of Blizzard Entertainment were "works for hire" under the Copyright Act.
Under the Copyright Act, a "work made for hire" is defined as "a work prepared by an employee within the scope of his or her employment." 17 U.S.C. 101.
A work is made by an employee within the scope of her employment when (1) it is of the kind the employee is employed to perform; (2) it occurs substantially within the authorize time and space limits; and (3) it is actuated, at least in part, by a purpose to serve the employer.
The Ninth Circuit found evidence that the voice recordings were within the employee's job description, the recordings took place during office hours in Blizzard's studios and were part of her job reviews. You watch or listen to the oral argument before the Ninth Circuit by visiting the video above.
The Ninth Circuit found Lewis's state law claims for commercial misappropriation of voice pursuant to California Civil Code Section 3344 to be preempted by the Copyright Act.
My book Copyright Litigation Handbook (Thomson Reuters West 2015-2016) discusses how the Copyright Act often preempts equivalent state law claims and discusses how the work for hire doctrine works.
For the Ninth Circuit's full decision, click here.
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Copyright law, fine art and navigating the courts. Attorney and AuthorCopyright Litigation Handbook (Thomson Reuters Westlaw 2015-2016) by Raymond J. Dowd
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