Shanton v. St. Charles Comm. Unit School District 303, No. 17 C 3402, Slip Op. (N.D. Ill. Oct. 25, 2017) (Gettleman, J.).

Judge Gettleman granted defendants’ Fed. R. Civ. P. 12(b)(6) motion to dismiss for failure to state a claim in this copyright dispute and refused to issue supplemental jurisdiction over the remaining state law claim.

There were two versions of plaintiffs’ alleged copyrighted works at issue — a 2005 version of the assessment program and a later 2008 version of the same assessment program. As a threshold matter, the Court held that the 2008 version was a derivative work of the 2005 version. The 2008 version showed sufficient additional originality because, at the request of the school district, it tracked student attendance and distilled patterns from that data. Even plaintiffs’ referred to the 2008 version as “derivative” in their complaint.

Because the 2008 version was a derivative work, the Court considered whether it was a work for hire. The defendants requested the rewrite that led to the 2008 version, evidencing control. Plaintiffs point to their job title with the defendants as evidence of the necessary expertise to develop the works. That shows that the same skills used in defendants’ employ were used to create the work. While the 2005 version was allegedly created off of defendants’ property, plaintiffs made no such claim for the 2008 version. Plaintiffs also updated the program yearly after the 2008 version at the defendants’ request and there is no claim that plaintiffs were compensated for that work outside of the salary and benefits paid by defendants. The only favors weighing in plaintiffs favor were that they maintained close control over updating the program and that it could have been rewritten off defendants’ premises. But those two factor did not outweigh plaintiff working at defendants’ request, being paid a salary as well as retirement benefits, and defendants assigning plaintiff other duties during the times she was updating the program.