Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 85 C 7771--Nicholas J. Bua, Judge.
Before CUDAHY, POSNER, and EASTERBROOK, Circuit Judges.
EASTERBROOK, Circuit Judge. Many disputes may be compromised by converting the stakes to a common denominator such as money and splitting the difference. Few commercial disputes end up in court, because the disputants may readily compromise and move on. Other disputes are harder to resolve because they seem to involve principles for which no compromise is readily apparent. The result may be a private war. A dispute that would be resolved quickly in the commercial world may fester. We have such a dispute. It is about the order in which the names of an article's authors will be listed. The article is D.J. Belsheim, R.A. Hutchinson & M.M. Weinstein, The Design and Evaluation of a Clinical Clerkship for Hospital Pharmacists, 50 Am. J. Pharmaceutical Education 139-45 (1986). Weinstein believes that it should have been published as M.M. Weinstein, D.J. Belsheim & R.A. Hutchinson, Etc. According to Weinstein, the publication of the article with the names in the wrong order violated the due process clause of the fourteenth amendment.
Weinstein was an Assistant Professor of Pharmacy Administration in the College of Pharmacy of the University of Illinois at Chicago. According to his complaint, from which we take these facts, he proposed a clinical program for practicing pharmacists, who would operate for two weeks in a "clerkship" under the guidance of professors. Several efforts to obtain funding for such a program were unsuccessful. The University finally supplied funds from its own budget for a program in August 1983. The proposal to the University was made jointly by Weinstein, Belsheim (another assistant professor and Director of Continuing Education in the College of Pharmacy), and Hutchinson (Director of Pharmacy Practice at the University of Illinois Hospital, where the clerkship program would be carried out). All three participated in the program. Although Weinstein asserts that he supplied most of the ideas and did most of the work, he concedes that the three agreed to write jointly on the results. Weinstein believes that he had an agreement with Belsheim under which Weinstein would be the first-listed author of a paper describing the clerkship and the data obtained from questionnaires, while Belsheim would be lead author of a paper to be called "Teaching Problem Solving in a Post-Graduate Clinical Pharmacy Clerkship."
In January 1984 Weinstein gave Belsheim a draft. Belsheim was dissatisfied. The two disagreed about the subjects to be covered and the conclusions to be drawn. By January 1985 Weinstein had completed another draft. One day he found the draft in Belsheim's wastebasket, with many editorial marks and sections snipped out. Belsheim denied doing more than making "notes" but shortly produced a new draft, revising both the text and the order of listing of authors. Weinstein did not like either the new order or the new text. Belsheim raised the matter with T. Donald Rucker, head of the Department of Pharmacy Administration in the College of Pharmacy. Rucker urged "that a ruling be sought from a representative group of peers, the College Executive Committee." Neither Belsheim nor Rucker asked the committee to act. Henri R. Manasse, Dean of the College, also offered some advice to Weinstein. He suggested further consultation among the authors but expressed impatience with their slow progress. He explained: "The work described in the present draft is a clear articulation of the accomplishments of this most important College endeavor and its results should be shared with our colleagues . . . . It should therefore be submitted for publication with all due haste." Three days later, on July 19, 1985, Belsheim submitted the article to the American Journal of Pharmaceutical Education. It was published in the Journal's Summer 1986 issue. Weinstein has sued Belsheim, Hutchinson, Manasse, Rucker, two other members of the faculty, the Trustees of the University, and the University itself, contending that they mutilated his work and stole the credit, denying him due process of law. He seeks a remedy under 42 U.S.C. § 1983. The district court dismissed the complaint under Fed. R. Civ. P. 12(b)(6) for failure to state a claim on which relief may be granted, concluding that the University owns the article and may do with it what it likes.
Weinstein says that the listing of names is no small matter. He is seeking a topic on which to write a dissertation and believes that the clerkship program would have been suitable, but that Belsheim's being listed as first author precludes it. (The record does not contain an affidavit or other evidence confirming that his thesis adviser would take this view, and if things are as Weinstein portrays them it is hard to see why the adviser would, but given the procedural posture of the case we must accept Weinstein's allegations.) He also believes that because the principal author is listed first,*fn1 the appearance of his name in third place will diminish his accomplishments in the eyes of other professors--a significant problem because, as we discuss below, he is looking for a job. His attorney adds the point that academic departments sometimes use the number of citations to a scholar's work as one indication of the importance of that work in the profession. The principal citation services list articles by first author only, so that any citations to the Belsheim, Hutchinson & Weinstein article would be collected under Belsheim's name.*fn2
We shall assume, given the posture of the case, that Weinstein could make good his claims of injury-in-fact. We shall also assume that the acts of Belsheim, an employee of a state university, were taken "under color of state law", see Lugar v. Edmondson Oil Co., 457 U.S. 922, 929, 73 L. Ed. 2d 482, 102 S. Ct. 2744 (1982), and that the letter of the Dean of the College of Pharmacy is the sort of decision that may be imputed to the University under Pembaur v. City of Cincinnati, 475 U.S. 469, 106 S. Ct. 1292, 89 L. Ed. 2d 452 (1986). None of these assumptions assists Weinstein unless the acts to which he objects have deprived him of "property", for the due process clause applies only to deprivations of "life, liberty or property", and Weinstein does not invoke the first two.
The district court concluded that the article was the University's property rather than Weinstein's because it was a "work for hire". The copyright law gives an employer the full rights in an employee's "work for hire", 17 U.S.C. § 201(b), unless a contract provides otherwise. The statute is general enough to make every academic article a "work for hire" and therefore vest exclusive control in universities rather than scholars. See DuBoff, An Academic's Copyright; Publish and Perish, 32 J. Copyright Society 17 (1984). The University of Illinois, like many other academic institutions, responded to the 1978 revision of the copyright laws by adopting a policy defining "work for hire" for purposes of its employees, including its professors. According to the policy, which is a part of each professor's contract with the University, a professor retains the copyright unless the work falls into one of three categories:
(1) The terms of a University agreement with an external party require the University to hold or transfer ownership in the copyrightable work, or
(2) Works expressly commissioned in writing by the University, or
(3) Works created as a specific requirement of employment or as an assigned University duty. Such requirements or duties may be contained in a job description or an employment agreement which designates the content of the employee's University work. If such requirements or duties are not so specified, such works will be those for which the topic or content is determined by the author's employment duties and/or which are prepared at the University's instance and expense, that is, when the University is the motivating factor in the preparation of the work.
The district court held that Weinstein's work is covered by paragraph (3) because the University funded the clerkship program and because, as a clinical professor, Weinstein was ...