Case 3:05-cv-00427-ST Document 51 Filed 01/25/06 Page 1 of 23 Page ID#: 557
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`IN THE UNITED STATES DISTRICT COURT
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`FOR THE DISTRICT OF OREGON
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`BERNADINE GILPIN, an individual,
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` Plaintiff,
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`v.
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`LAWRENCE A. SIEBERT and SAM KIMBALL,
`doing business as PRACTICAL PSYCHOLOGY
`PRESS, and LAWRENCE A. SIEBERT, an
`individual, and MARY KARR, an individual,
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` Defendants.
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`STEWART, Magistrate Judge:
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`CV-05-427-ST
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`FINDINGS AND
`RECOMMENDATION
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`INTRODUCTION
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`In her Third Amended Complaint, plaintiff, Bernadine Gilpin (“Gilpin”), alleges the
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`following claims against defendants Lawrence A. Siebert and Sam Kimball,1 doing business as
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`1 Defendants allege that Sam Kimball has no interest or involvement in the business affairs of Practical Psychology
`Press which is an Oregon corporation. Answer to Third Amended Complaint, ¶ 2.
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`1 - FINDINGS AND RECOMMENDATION
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`Case 3:05-cv-00427-ST Document 51 Filed 01/25/06 Page 2 of 23 Page ID#: 558
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`Practical Psychology Press, Lawrence A. Siebert (“Siebert”) and Mary Karr (“Karr”):
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`First Claim: Copyright Infringement on the workbook entitled College Survival
`and Success;
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`Second Claim: Copyright Infringement on the instructional manual entitled
`Teaching College Success to Adult Learners;
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`Third Claim: Failure of Duty to Account on the fourth and fifth editions of the
`book The Adult Student Guide to Survival and Success.
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`This court has subject matter jurisdiction of this action under 20 USC § 1338. Defendants
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`have filed a Motion for Summary Judgment (docket #29) on the basis that Portland Community
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`College (“PCC”), and not Gilpin, owns the copyrights on these works. For the reasons that
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`follow, the Motion for Summary Judgment should be denied as to ownership of the copyrights,
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`but granted as to those portions of Gilpin’s claims which she has repudiated.
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`LEGAL STANDARDS
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`FRCP 56(c) authorizes summary judgment if “no genuine issue” exists regarding any
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`material fact and “the moving party is entitled to judgment as a matter of law.” The moving
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`party must show an absence of an issue of material fact. Celotex Corp. v. Catrett, 477 US 317,
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`323 (1986). Once the moving party does so, the nonmoving party must “go beyond the
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`pleadings” and designate specific facts showing a “genuine issue for trial.” Id at 324, citing
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`FRCP 56(e). The court must “not weigh the evidence or determine the truth of the matter, but
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`only determines whether there is a genuine issue for trial.” Balint v. Carson City, 180 F3d 1047,
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`1054 (9th Cir 1999) (citation omitted). A “‘scintilla of evidence,’ or evidence that is ‘merely
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`colorable’ or ‘not significantly probative,’” does not present a genuine issue of material fact.
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`United Steelworkers of Am. v. Phelps Dodge Corp., 865 F2d 1539, 1542 (9th Cir), cert denied,
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`493 US 809 (1989) (emphasis in original) (citation omitted).
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`2 - FINDINGS AND RECOMMENDATION
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`

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`Case 3:05-cv-00427-ST Document 51 Filed 01/25/06 Page 3 of 23 Page ID#: 559
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`The substantive law governing a claim or defense determines whether a fact is material.
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`T.W. Elec. Serv., Inc. v. Pacific Elec. Contractors Ass’n, 809 F2d 626, 631 (9th Cir 1987). The
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`court must view the inferences drawn from the facts “in the light most favorable to the
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`nonmoving party.” Id (citation omitted). Thus, reasonable doubts about the existence of a
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`factual issue should be resolved against the moving party. Id at 631.
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`FACTS
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`A review of the parties’ facts, as well as the other materials submitted by the parties,
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`including declarations, exhibits and deposition excerpts, viewed in the light most favorable to
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`Gilpin, reveals the following facts.
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`Gilpin was employed by PCC as a counselor from 1978 or 1979 until August 1995.
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`Gilpin Depo, p. 8; Gilpin Decl, ¶ 4. She specialized in the field of adult students returning to
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`college. Gilpin Depo, pp. 8-9. As part of her counseling job duties, she also taught classes in
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`career development, interviewing skills, writing resumes, etc. Id at 9, 37. She did not teach
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`every term or every day. Id at 96. Gilpin signed an employment contract with PCC which was
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`subject to the provisions of an agreement between PCC and its teachers union (“Union
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`Agreement”). Hubert Decl, Ex J. The Union Agreement contained the following provisions in
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`Article 28 relating to copyrights:
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`28.11 The ownership of any materials or processes developed solely by
`an employee’s individual effort and expense shall vest in the
`employee and be copyrighted, if at all, in the employee's name.
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`28.12 The ownership of materials or processes produced solely for the
`College and at College expense shall vest in the College and be
`copyrighted, if at all, in its name.
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`28.13 In those instances where materials or processes are produced by an
`employee with College support, by way of use of significant
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`3 - FINDINGS AND RECOMMENDATION
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`Case 3:05-cv-00427-ST Document 51 Filed 01/25/06 Page 4 of 23 Page ID#: 560
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`personnel time, facilities or other College resources, the ownership
`of the materials or processes shall vest in (and be copyrighted by,
`if at all) the person designated by written agreement between the
`parties entered into prior to the production. In the event there is no
`such written agreement entered into, the ownership shall vest in
`the College.
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`Hubert Decl, Exs L (September 1, 1986 - August 31, 1989), K (September 1, 1989 - August 31,
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`1992), & M (September 1, 1992 - August 31, 1995).
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`During the time she was employed by PCC, Gilpin and Siebert co-wrote a book aimed at
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`helping older students return to college titled Time for College which was published in 1989.
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`Hubert Decl, Ex A. p. 2. Seven years earlier in 1982, Siebert and Tim Walter (“Walter”) co-
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`authored a book titled The Adult Student’s Guide to Survival & Success (“ASG”). Id at 1;
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`Siebert Decl, ¶ 3. According to Gilpin, Time for College was a new book and not intended to be
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`a second edition of ASG or referred to as such in any publication.2
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`Because Time for College did not benefit from good sales, the authors agreed that the title
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`needed to be changed to clearly identify the book’s content. Gilpin Decl, ¶ 10. The result was a
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`derivative of Time for College called The Adult Student’s Guide to Survival & Success - Time for
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`College (2nd edition), which was co-authored by Gilpin and Siebert and published in 1992. Id;
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`Hubert Decl, Ex A, p. 3.
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`Gilpin also appeared as co-author of further derivative books of Time for College titled
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`The Adult Student’s Guide to Survival & Success (3rd edition) (again with Siebert, published in
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`1996) and The Adult Student’s Guide to Survival & Success (4th edition) (with Siebert and Karr,
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`published in 2000). Id at 4-5. On September 11, 2000, Siebert registered The Adult Student’s
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`2 Defendants contend that Time for College is the second edition of ASG and contains a significant amount of material
`that was originally published in ASG. Siebert Decl, ¶ 4.
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`4 - FINDINGS AND RECOMMENDATION
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`

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`Case 3:05-cv-00427-ST Document 51 Filed 01/25/06 Page 5 of 23 Page ID#: 561
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`Guide to Survival & Success (4th edition) with the United States Copyright Office (“USCO”),
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`acknowledging Gilpin and Karr as co-authors. Hubert Decl, Ex I. Gilpin was not listed as a co-
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`author of the subsequent (5th) edition of the book which was authored by Siebert and Karr and
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`published in 2003. Id, Ex A, p. 6.
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`While employed by PCC, Gilpin also wrote the instructional manual titled Teaching
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`College Success to Older Students - An Instructor’s Manual (published in 1989) (“Instructor’s
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`Manual” or “Manual”) and the workbook titled College Survival and Success: Priming Adults
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`Starting College (published in 1993) (“Workbook”). Id, Ex A, pp. 7-8. She registered the
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`Workbook with the USCO on October 12, 1993. Id, Ex G.
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`She then wrote the derivative Manual titled Teaching College Success to Adult Learners -
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`An Instructor’s Manual (3rd edition, published in 1997), which she registered with the USCO on
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`June 8, 2004. Id, Ex A, p. 9, & Ex H. However, she was not listed as an author of the Manual’s
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`4th edition (published in 2000) or 5th edition (published in 2003), both co-authored by Siebert and
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`Karr. Id, Ex A, pp. 10-11.
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`DISCUSSION
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`In her first and second claims, Gilpin alleges that defendants have infringed on her
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`copyright of the Workbook and the Instructor’s Manual (3rd edition) by copying and publishing
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`large portions of them in the 4th and 5th editions of the Instructor’s Manual. In her third claim,
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`she alleges defendants failed to account for her share of royalties from The Adult Student’s
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`Guide to Survival & Success (5th edition), although a large part of the book was derived from
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`previous editions of the book which she co-authored.
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`Defendants move for summary judgment against all claims on the basis that Gilpin has
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`5 - FINDINGS AND RECOMMENDATION
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`Case 3:05-cv-00427-ST Document 51 Filed 01/25/06 Page 6 of 23 Page ID#: 562
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`no standing because she does not own the copyrights to any of the works which were “made for
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`hire.” Even if Gilpin has standing, defendants also seek partial summary judgment against those
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`specific claims which she repudiated in her deposition.
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`I. Legal Standard
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`“Copyright is a creature of statute, and the only rights that exist under copyright law are
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`those granted by statute.” Silvers v. Sony Pictures Entm’t, Inc., 402 F3d 881, 883-84 (9th Cir),
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`cert denied, 126 S Ct 367 (2005). Under the 1976 Copyright Act, “[t]he legal or beneficial
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`owner of an exclusive right under a copyright is entitled . . . to institute an action for any
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`infringement of that particular right committed while he or she is the owner of it.” 17 USC
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`§ 501(b).
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`To establish infringement, “two elements must be proven: (1) ownership of a valid
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`copyright, and (2) copying of constituent elements of the work that are original.” Rice v. Fox
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`Broad. Co., 330 F3d 1170, 1174 (9th Cir 2003), citing Feist Publ’ns, Inc. v. Rural Tel. Serv. Co.,
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`499 US 340, 361 (1991). To show ownership of a valid copyright, a plaintiff bears the burden of
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`proving that the work as a whole is original and that he or she has complied with the statutory
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`formalities. Lotus Dev. Corp. v. Borland Int’l, Inc., 49 F3d 807, 813 (1st Cir 1995), aff’d by an
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`equally divided court, 516 US 233 (1996). To prove that original elements of the work were
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`copied, a plaintiff may show that the works in question “are substantially similar in their
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`protected elements” and that the infringing party “had access” to the copyrighted work. Metcalf
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`v. Bochco, 294 F3d 1069, 1072 (9th Cir 2002).
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`Copyright ownership “vests initially in the author or authors of the work” unless the work
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`is “made for hire.” 17 USC § 201(a)-(b). A work is “made for hire” if it is “prepared by an
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`6 - FINDINGS AND RECOMMENDATION
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`Case 3:05-cv-00427-ST Document 51 Filed 01/25/06 Page 7 of 23 Page ID#: 563
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`employee within the scope of his or her employment.” 17 USC § 101. In that event, “the
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`employer or other person for whom the work was prepared is considered the author for purposes
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`of this title and, unless the parties have expressly agreed otherwise in a written instrument signed
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`by them, owns all of the rights comprised in the copyright.” 17 USC § 201(b).
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`The Copyright Act does not define the scope of employment. Saenger Org., Inc. v.
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`Nationwide Ins. Licensing Assoc., Inc., 119 F3d 55, 60 (1st Cir 1997). However, the Supreme
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`Court has found that Congress intended to incorporate common law agency principles, as
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`defined in the RESTATEMENT (SECOND) OF AGENCY (1958), to decide whether an employee has
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`created a work within the scope of his or her employment under 17 USC § 101(1). Cmty. for
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`Creative Non-Violence v. Reid, 490 US 730, 739-740 (1989). Under the RESTATEMENT
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`(SECOND) OF AGENCY § 228(1) (1958), a work is prepared within the scope of one’s
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`employment if it meets a three-prong test: (1) it is the kind of work the author is employed to
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`perform; (2) the creation of the work occurred substantially within authorized work hours and
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`space; and (3) the creation of the work was actuated, at least in part, by a purpose to serve the
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`employer. This determination necessitates not only a case by case evaluation, but potentially a
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`task by task evaluation. See Pittsburg State Univ. v. Kansas Bd. of Regents, 2005 WL 3005554
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`at *11 (D Kan, Nov. 10, 2005), citing Wadley & Brown, Working Between the Lines of Reid:
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`Teachers, Copyrights, Work-For-Hire and a New Washburn University Policy, 38 Washburn LJ
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`385, 404 (1999).
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`///
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`///
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`II. Analysis
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`7 - FINDINGS AND RECOMMENDATION
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`Case 3:05-cv-00427-ST Document 51 Filed 01/25/06 Page 8 of 23 Page ID#: 564
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` Because Gilpin was an employee of PCC, the first issue is whether the original Time for
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`College, Workbook and Instructor’s Manual were written in the scope of her employment. If so,
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`then the second issue is whether any express agreement between Gilpin and PCC assigns all the
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`rights in those works to Gilpin.
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`A. Whether the Works were “Made for Hire”
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`To own a valid copyright in derivative works,3 a person must own a copyright in the
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`original work because the owner of the original work has exclusive rights to copy it and to
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`prepare derivative works based on it. 17 USC § 106; see also Avtec Sys., Inc. v. Pfeiffer, 21 F3d
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`568, 572 (4th Cir 1994) (citation omitted). “In judicial proceedings, a certificate of copyright
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`registration constitutes prima facie evidence of copyrightability and shifts the burden to the
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`defendant to demonstrate why the copyright is not valid.” Bibbero Sys., Inc. v. Colwell Sys.,
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`Inc., 893 F2d 1104, 1106 (9th Cir 1990). Because Gilpin has presented certificates of copyright
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`registration for the works at issue or their derivatives (Hubert Decl, Exs G, H, & I), defendants
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`have the burden to prove that Gilpin’s copyrights in the original works are not valid.
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`Defendants argue that all of the works are “made for hire” because Gilpin taught PCC
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`classes, developed the works using PCC students, staff, and resources, and intended to benefit
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`PCC. As discussed below, this court finds that either the factual record is insufficient or contains
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`genuine issues of material fact so as to preclude determining by summary judgment whether any
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`of the works were “made for hire.”
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`1. Time for College and Derivative Works (Third Claim)
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`3 A derivative work is a “work based upon one or more preexisting works, such as a translation ... or any other form in
`which a work may be recast, transformed, or adapted. A work consisting of editorial revisions, annotations, elaborations, or
`other modifications which, as a whole, represent an original work of authorship, is a ‘derivative work.’” 17 USC § 101.
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`8 - FINDINGS AND RECOMMENDATION
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`Case 3:05-cv-00427-ST Document 51 Filed 01/25/06 Page 9 of 23 Page ID#: 565
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`Gilpin co-wrote Time for College and its 2nd edition with Siebert while she was employed
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`at PCC. The subsequent 3rd and 4th editions were also derived from Time for College and listed
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`Gilpin as a co-author, but were published after she had retired from PCC. According to Gilpin,
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`defendants published a 5th edition of the book utilizing much of the material Gilpin had
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`contributed or co-written in earlier editions. Whether Time for College is a work “made for
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`hire,” such that Gilpin holds no copyright interest in it or its derivative works, depends on
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`whether it was written in the scope of Gilpin’s employment at PCC.
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`Undisputed material facts establish that Gilpin created Time for College at least in part in
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`order to serve PCC. While looking for materials to teach the course “College Survival and
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`Success,” she ran across ASG that Siebert and Walter had written in 1982 and, concluding that
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`many items in the book were missing as far as answering the needs of adult students, she wrote a
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`letter to Siebert about the book and her ideas. Gilpin Depo, p. 10. The two decided on a
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`collaboration to write a book that would address the needs of adult students and co-wrote Time
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`for College. Id at 10-11. Gilpin gave extra credit for students in her class who critiqued her
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`book chapter by chapter before it was published. Id at 18-21. Gilpin explained that she “gave it
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`to students who wanted to critique materials that were to be used in the future.” Id at 21-22
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`(emphasis added). In fact, Time for College was used for the class after it was published. Id at
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`18.
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`However, as discussed below, genuine issues of material fact exist as to whether Time for
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`College is the kind of work Gilpin was employed to perform at PCC and whether it was created
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`substantially within authorized work hours and space.
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`
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`a. Kind of Work Employed to Perform
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`9 - FINDINGS AND RECOMMENDATION
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`Case 3:05-cv-00427-ST Document 51 Filed 01/25/06 Page 10 of 23 Page ID#: 566
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`Written job duties are an obvious starting point in deciding whether creating the work at
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`issue was the type of work Gilpin was employed to do. For example, in Vanderhurst v.
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`Colorado Mtn. Coll. Dist., 16 F Supp 2d 1297, 1307 (D Col 1998), the court relied on a college
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`policy to find that class outlines developed by a junior college instructor were fairly and
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`reasonably incidental to his employment. The policy delineated the duties of faculty members,
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`including “course, program and curriculum development [and] course preparations.” Id.
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`Gilpin’s job requirements as a counselor for PCC are set forth in the September 1, 1989 -
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`August 31, 1992 Union Agreement which states in pertinent part:
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`10.4. Counselors, consistent with the requirements and standards of the
`department and the qualifications of the individual Counselor,
`shall:
`10.41 Be responsible for counseling and guiding any assigned or
`requesting students . . . in meeting their respective
`educational, personal, social and vocational goals . . .
`10.43 Administer and/or interpret appropriate standardized tests .
`. . .
`10.45 Assist Management in revising, updating and evaluating
`career exploration and testing programs,
`10.46 Provide consultative support services to College staff.
`10.47 Provide group counseling sessions, seminars, workshops
`and career or personal development classes. The
`individual Counselor’s preference shall be given serious
`consideration in making assignments. Assignments to
`career or personal development classes shall not exceed 20
`percent of the term workload, without the consent of the
`individual Counselor.
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`Hubert Decl, Ex K (emphasis added).
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`The September 1, 1986 - August 31, 1989 Union Agreement adds the following language
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`in Section 10.47: “Provide group counseling sessions, seminars, workshops and career or
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`personal development classes with reasonable time allowed for preparations.” Id, Ex J
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`(emphasis added). Although Section 10 in both Union Agreements allows individual
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`10 - FINDINGS AND RECOMMENDATION
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`Case 3:05-cv-00427-ST Document 51 Filed 01/25/06 Page 11 of 23 Page ID#: 567
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`departments to require more specific job assignments, the record does not include any such
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`additional job duties required by Gilpin’s department.
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`One of Gilpin’s job duties was to teach career or personal development classes. The job
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`duties of PCC teaching faculty, in contrast to counselors, include the duty to “[r]evise/develop
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`courses and curriculum” and “[i]nstruct students, using approved course content guides
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`developed by Collegewide subject area Faculty.” Id, Exs J & K, ¶¶ 10.22 & 10.23. If a teaching
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`faculty develops new courses or makes major revisions to existing ones, then he or she receives
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`either released time or additional compensation as long as the type of compensation is specified
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`before agreeing to accept the assignment. Id, ¶ 11.2372 (emphasis added). Gilpin, however,
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`received no additional compensation from PCC for any of her works. Gilpin Decl, ¶ 12. The
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`Union Agreements are silent on what is expected of PCC counselors when they teach career or
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`personal development classes. Whether counselors are subject to the same duties as teaching
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`faculty, namely to revise/develop courses, and whether revising and developing courses includes
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`writing a student guidebook such as Time for College, cannot be determined from the record.
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`According to Comment b to RESTATEMENT (SECOND) OF AGENCY § 229 (1958), acts
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`incidental to authorized acts may be authorized as within the scope of employment:
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`An act may be incidental to an authorized act, although considered
`separately it is an entirely different kind of act. To be incidental, however,
`it must be one which is subordinate to or pertinent to an act which the
`servant is employed to perform. It must be within the ultimate objective of
`the principal and an act which it is not unlikely that such a servant might
`do. The fact that a particular employer has no reason to expect the
`particular servant to perform the act is not conclusive.
`Id (emphasis added).
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`Applying Comment b, some courts have broadly interpreted incidental acts, increasing
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`the copyrights of employers. In Genzmer v. Public Health Trust of Miami-Dade County, 219 F
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`Case 3:05-cv-00427-ST Document 51 Filed 01/25/06 Page 12 of 23 Page ID#: 568
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`Supp 2d 1275, 1282 (D Fla 2002), the court held that a computer program developed by a
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`medical research fellow was incidental to his job duties. As part of his fellowship duties, the
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`research fellow was required to complete a six-month research assignment which could
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`encompass “a myriad of activities” and, at times, such research had included computer programs.
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`Id at 1281. Moreover, the job description stated that fellows would acquire skills required to
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`organize, administer and direct a critical care unit, and the computer program fell under this
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`description because it organized care information in a manageable way. Similarly, in Miller v.
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`CP Chem., Inc., 808 F Supp 1238, 1243 (D SC 1992), a computer program designed by a
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`chemical lab supervisor was found to be incidental to his job duties where the supervisor was
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`responsible for organizing and updating the laboratory and the computer program helped with
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`organization.
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`On the other hand, Quinn v. City of Detroit, 988 F Supp 1044, 1051 (ED Mich 1997)
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`found that designing computer programs was not the kind of work that a managing attorney for a
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`city’s law department was hired to perform. The job description did not require him to create
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`computer software; his employer never requested him to develop it; he had no prior
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`programming experience; and the city had its own computer programming department to do the
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`kind of work the attorney decided on his own to do.
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`Applying Comment b in this case does not resolve the issue. Writing a student
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`guidebook aimed at helping older students return to college is certainly pertinent to teaching
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`personal development and career classes at PCC. However, it is unclear whether writing the
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`book is within the ultimate objective of Gilpin’s job. She was not asked to write the book. In
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`fact, the only writing PCC asked of Gilpin was an administrative report on a program she was
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`Case 3:05-cv-00427-ST Document 51 Filed 01/25/06 Page 13 of 23 Page ID#: 569
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`running. Gilpin Depo, p. 10. The record does not reveal whether it is unlikely that a PCC
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`counselor might write a personal development book. In fact, it may be so unlikely that no
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`remuneration was made available. Certainly a counselor, whose main objective is not teaching,
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`may fulfill her teaching duty by using textbooks written by others rather than having to write
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`them herself. The record is insufficient to resolve this issue at this time.
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`b. Occurring Substantially Within Authorized Time and Space
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`The parties disagree whether Gilpin made significant use of PCC resources in co-writing
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`Time for College. Gilpin co-wrote Time for College at home on her home computer outside of
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`normal work hours; in fact, she did not even have a work computer. Gilpin Depo, pp. 98-100.4
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`Defendants argue that because the work hours of a professor are quite fluid, even work done at
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`home can be considered within the authorized work time and space limits. As noted by the
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`Second Circuit, “the very nature of a teacher’s duties involves a substantial amount of time
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`outside of class devoted to preparing lessons, problem sets, and quizzes and tests – which is
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`clearly within the scope of employment.” Shaul v. Cherry Valley-Springfield Cent. Sch. Dist.,
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`363 F3d 177, 186 (2nd Cir 2004).
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`The Union Agreements dictate that counselors have a 35-hour workload per week and
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`“where travel and off-campus activities are required by the Department Administrator, the time
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`required will be included in the workweek.” Hubert Decl, Exs J & K, ¶ 11.31. Without consent,
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`the counselors’ assignments to career or personal development classes are not to exceed 20% of
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`the term workload. Id at ¶ 10.47. This placed a cap on the amount of teaching and preparation
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`for teaching that PCC authorized counselors to do. Gilpin admitted that she spent “a lot of
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`4 Although these pages cited by Gilpin were not provided to the court as part of the record, defendants have not
`disputed the assertion that she used her home computer to write Time for College.
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`13 - FINDINGS AND RECOMMENDATION
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`Case 3:05-cv-00427-ST Document 51 Filed 01/25/06 Page 14 of 23 Page ID#: 570
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`additional time” at home “preparing for classes, for counseling and for her job,” and that she
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`considered these additional hours as part of her mission as an educator, although she did not
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`report them to PCC. Gilpin Depo, pp. 102-03.
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`While the authorized work hours of a PCC counselor may well be fluid, they are not
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`unlimited. They depend on the customary number of additional hours (if any) that PCC expects
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`of its counselors for them to be able to perform their job. Any broader reading would mean
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`authorizing counselors to work day and night and blurring any lines left between one’s
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`professional life and personal endeavors. When asked about the school’s expectation of teachers
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`and counselors working additional hours, Gilpin explained:
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`I can’t say that the school expected me to put in a lot of time after hours
`away from the college. I was evaluated on my performance as a counselor
`and as an instructor. I think you have copies of some of those evaluations.
`But as to whether they said, I expect you to read so many books or I
`expect you to go for this professional qualification, I was not told that.
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`Id at 103-04.
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`At this juncture, the facts are insufficient to ascertain whether Gilpin created these works
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`substantially within her authorized work hours and space.
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`///
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`///
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`///
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`2. Instructor’s Manual and Derivative Works (First Claim)
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`a. Kind of Work Gilpin was Employed to Perform
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`Gilpin wrote the first Instructor’s Manual while employed by PCC. Gilpin Depo, p. 26.
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`It contained lesson plans (or “vignettes”) inspired by various courses Gilpin had taught, both at
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`PCC and in elementary school. Id at 27. Gilpin field-tested the vignettes in “various teaching”
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`she had done, including her training with the Portland Urban Teachers Training Project where
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`she taught the 6th through the 8th grades. Id. Gilpin either tried the vignettes “in [her PCC] class
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`or [she] had been told by special training that this particular method worked particularly well.”
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`Id.
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`Common sense dictates that one who teaches a class, no matter what job title (professor,
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`teacher, instructor or teaching assistant), is expected to prepare for that class. The methods of
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`preparation are varied, whether by reading about the subject, taking mental notes, outlining a
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`lecture, writing out a lesson plan, etc. Such methods of preparation for teaching have been held
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`to be incidental to employment as a teacher. Vanderhurst, 16 F Supp 2d at 1307 (class outlines
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`of a junior college instructor were fairly and reasonably incidental to his employment); Shaul,
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`363 F3d at 186 (tests, quizzes and homework problems were the kind of work a high school
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`math teacher was required to prepare in his official duties as a teacher).
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`If this dispute were over the copyright of lesson plans Gilpin had designed in preparation
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`for teaching her PCC classes, then this court would conclude that they fall within the kind of
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`work she was hired to do. However, it is unclear from the record what portion (if any) of the
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`first Instructor’s Manual is comprised of lesson plans Gilpin designed for the purpose of
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`achieving her PCC teaching duty and what portion was inspired by various other experiences and
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`training. Due to questions of fact, summary judgment is precluded on this issue.
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`b. Occurring Substantially Within Authorized Time and Space
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`According to Gilpin, she did not write the first Instructor’s Manual during official work
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`hours and did not use the completed book in her classes. Gilpin Depo, p. 26; Gilpin Decl, ¶ 8.
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`However, she did try some of the vignettes in the Manual in her PCC classes, which would be
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`during authorized time and within authorized space of her job. The facts do not reveal how
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`much time Gilpin spent creating the Manual in her classes as opposed to outside her official
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`work hours. Whether a substantial percentage of the Manual’s creation took place within PCC’s
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`authorized time and space limits is unclear and cannot be resolved at this point.
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`c. Purpose to Serve PCC
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`Whether the Manual was created, at least in part, by a purpose to serve PCC depends on a
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`number of factors. For example, in Miller, 808 F Supp at 1243, a computer program was held to
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`have been created at least in part to serve the employer where it was designed to simplify the
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`employee’s job and to eliminate errors, was requested by the employer, and was tailored to the
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`employer’s products. See also Genzmer, 219 F Supp 2d at 1282-83 (computer program was
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`actuated to serve the employer where it was tailored to fit the employer’s needs and, once
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`complete, it was used by the employer).
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`No evidence supports a finding that Gilpin developed the Manual to simplify her job or
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`the jobs of other instructors at PCC. To the contrary, Gilpin’s stated purpose for writing the
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`Manual was “for other instructors who were teaching the course, you know, away from the
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`college.” Gilpin Depo, p. 89.
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`However, it is not clear whether the Manual was written at least partly to benefit PCC.
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`Controversy surrounds the status of 100 copies of the Manual made and distributed by PCC’s
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`Instructional Materials Center at PCC expense “for promos” prior to its publication. Id at 89-90.
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`In her deposition, Gilpin testified that PCC made the copies “[t]o send out to people who might
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`be interested in teaching the course.” Id. As part of her job, Gilpin made presentations at adult
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`learner conferences around the United States and Canada, where she addressed groups such as
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`representatives of companies that were laying off a large group of people and were interested in
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`“reschooling” them. Id at 95-97. She believed that talking to people who wanted to create such
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`a course “might very well have been the reason for having copies of the instructor’s manual run
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`off.” Id at 95-96. Sometimes it was appropriate to use materials she had written in her
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`presentations; other times it was not. Id at 95. However, in her declaration, Gilpin clarified that
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`the 100 copies were made by and for PCC at its request “for promotional material to advertise
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`classes taught at PCC for adult learners” and “for dissemination for that express purpose.”
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`Gilpin Decl, ¶ 11.
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`By using the Manual at PCC’s request before it was published in presentations at
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`conferences, Gilpin likely benefitted PCC’s image. If used to advertise classes taught at PCC,
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`then it clearly served PCC’s purposes. However, according to Gilpin, she did not write the
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`Manual for PCC. Instead, PCC took advantage of the Manual as a promotional material after it
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`was written. Therefore, it does not directly follow that Gilpin wrote t