
USCA1 Opinion

	




       No. 96-2197                           THE SAENGER ORGANIZATION, INC.,                                Plaintiff, Appellee,                                         v.                  NATIONWIDE INSURANCE LICENSING ASSOCIATES, INC.,                COMMONWEALTH LICENSING GROUP, AND LAWRENCE R. DURKIN,                               Defendants, Appellants.                                ____________________                    APPEAL FROM THE UNITED STATES DISTRICT COURT                          FOR THE DISTRICT OF MASSACHUSETTS                    [Hon. Nancy C. Gertner, U.S. District Judge]                                ____________________                                       Before                                Selya, Circuit Judge,                            Bownes, Senior Circuit Judge,                              and Stahl, Circuit Judge.                                ____________________            Ernest  B. Murphy with whom  Murphy & O'Connell was  on brief for       appellants.            David                  J.                     Byer                         with                              whom Testa, Hurwitz & Thibeault, LLP, Stephen J.       Kenney, and Kenney & Maciolek, were on brief for appellee.                                ____________________                                    July 18, 1997                                ____________________                      STAHL, Circuit Judge.  This copyright  infringement            case                 revolves around a dispute over who owns the copyrights in            insurance licensing  texts and manuals  that were created  in            1986.                                     It                      comes                           to                              us                                 on                                    appeal from the district court's grant            of               summary                       judgment                               in                                  favor of plaintiff-appellee, The Saenger            Organization,  Inc.  ("Saenger"),  and  against   defendants-            appellants Lawrence R. Durkin, Nationwide Insurance Licensing            Associates,   Inc.,   and   Commonwealth   Licensing    Group            (collectively                          "Durkin").                                     Durkin argues that the district court            improperly                       found                             that                                 no                                    genuine issue of material fact existed            as to Saenger's ownership of valid copyrights in the  manuals            and                Durkin's                         infringement of them.  Thus, Durkin contends that            the                district                         court wrongly concluded that Saenger was entitled            to judgment in its favor as a matter of law.  Durkin  further            argues                   that                        the district court incorrectly determined that the            applicable Massachusetts statutes  of limitations and  frauds            barred his state  law counterclaims against Saenger  alleging            fraud, breach of agreement, and unfair and deceptive business            practices.                                               For                           the                               reasons that follow, we affirm the district            court's rulings.                                 Standard of Review                      We exercise plenary, de  novo review of a  district            court's                    entry                          of                            summary                                    judgment.  See Ortiz-Pinero v. Rivera-            Arroyo, 84 F.3d 7, 11  (1st Cir. 1996).  Summary judgment  is            appropriate                        where there are no genuine disputes as to material                                         -2-                                          2            facts                  and                      the moving party is entitled to judgment as a matter            of law.   See Fed.  R. Civ. P. 56(c).   We review the  record            evidence in the light most favorable to the non-moving party,            and thus draw all  reasonable inferences and resolve  factual            disputes in favor of the party against whom summary  judgment            has                been                     entered,                             in                                this case, the defendants-appellants.  See            Den Norske Bank v. First Nat'l Bank of Boston, 75 F.3d 49, 53            (1st Cir. 1996).                          Background and Prior Proceedings                      The                          Saenger                                  Organization has been in the business of            publishing insurance licensing texts and manuals since  1986.            Durkin worked for Saenger from 1986 until 1992, during  which            time he was an officer and vice president of the corporation.            Since 1993,  Durkin,  now the  principal of  both  Nationwide            Insurance  Licensing Associates  and  Commonwealth  Licensing            Group, has been independently  in the business of  publishing            insurance licensing texts and manuals.                      According to Durkin, he and Saenger reached an oral            agreement in April 1986 as  to work that Durkin would do  for            Saenger.   Saenger disputes  the existence  of any  unwritten            agreement, but concedes that we must view the record evidence            in the  light most favorable to  Durkin for purposes of  this            appeal and the  underlying motion.  According to Durkin,  the            work responsibilities  he undertook  in the  April 1986  oral            agreement included the development of a property and casualty                                         -3-            insurance                      licensing                               manual, a life and health insurance manual,            and several state law supplements.  Durkin maintains that the            alleged oral agreement contained the following terms:  Durkin            was to begin immediately to develop, update, and expand these            manuals and supplements for Saenger, which would market them;            he  would become  Saenger's vice  president immediately  upon            completion of an  existing employment  commitment to  another            firm;                  he                     and                         Saenger would be co-authors of the materials that            Durkin would write  and co-owners of the copyrights in  those            materials; and, he would be paid a base salary of $42,000 per            annum plus 50 percent of the net revenues of the materials he            worked                   on,                       with                           the                               computation and sharing of such net revenue            to               begin                     in                       June                            1987                                 and to continue in each succeeding fiscal            year.  Durkin  promptly began to  work part-time (nights  and            weekends) on the manuals --  as he and Saenger had agreed  --            even though  he was  still employed  by Educational  Training            Systems ("ETS").  Durkin and Saenger continued with this work            arrangement for several months until Durkin assumed full-time            work duties at Saenger's offices in July 1986.                      Two of the  insurance licensing  texts that  Durkin            worked on during his  relationship with Saenger were  manuals            that                 came                      to                        be                           titled                                  Li                                   fe, Accident and Health Licensing Text            and Property/Casualty Licensing Text (hereinafter "Life"  and            "Property" respectively).   Durkin claims  he authored  these            works in their entirety,  while Saenger contends that  Durkin                                         -4-                                          4            merely expanded  and  updated  previously  developed  Saenger            manuals.                                           In                         any event, on or about November 26, 1986, Saenger            submitted                      an                        application                                    for copyright registration, a Form TX,            for Property with the United States Copyright Office.   About            two days later, Saenger  submitted a similar application  for            Life.1                        The                          Property                                                                    application listed July 16, 1986 as the            work's first date of publication and indicated that it was  a            "work  made for  hire" by  the work's  co-authors, which  the            application  listed  as   Bruce  W.   Saenger  (The   Saenger            Organization's  principal)  and  Lawrence  R.  Durkin.    The            application indicated that  The Saenger Organization was  the            hiring party  for whom  the work was  made and  was the  sole            claimant  of copyright  protection.    The  Copyright  Office            responded to the application with a letter dated January  23,            1987,                  notifying                           Saenger                                   that "[i]f an individual contributes to            or creates a work in his or her capacity as either an officer            or  employee  of  a company  or  organization,  the  work  is            considered a 'work made for hire' and the employer should  be            named as the author rather than the individual."  In response            to this  letter,  Saenger completed  and submitted  a  second            application for the same work, i.e., Property, again  listing            The Saenger Organization as the sole copyright claimant,  but            1.  Durkin claims that the Property application, while            submitted to the Copyright Office in November 1986, was            filled out in his presence on or about July 16, 1986.                                         -5-                                          5            this time also listing it alone as the work's author.  On the            basis of this second application, which the Copyright  Office            received on  February 24, 1987,  the Copyright Office  issued            Saenger                    a                      copyright                               for                                   P                                   roperty (registration number TX 2-011-            625), which listed November 26, 1986 as the effective date of            registration.                      Like the  initial Property  application, the  first            application that Saenger submitted  for Life listed Bruce  W.            Saenger and  Lawrence R. Durkin as  the authors of the  work,            indicated that it was a "work made for hire," and stated that            The  Saenger Organization,  the copyright  claimant, was  the            hiring                   party                         for whom the work had been made.   Interestingly,            the Copyright Office responded  to this application prior  to            responding to the earlier Property application.  By a  letter            dated                  December 24, 1986, the Copyright Office notified Saenger            that "[w]here  a work  is 'made  for hire,'  the employer  is            considered  the author  and  should  be [so]  named  [on  the            copyright application.]"  In response to this letter, Saenger            completed                      and                         submitted                                   a second application for the same work,            i.e.,                  Life                     ,                       this                            time                                 listing The Saenger Organization alone as            the work's author.  On the basis of this second  application,            which the Copyright Office received on January 16, 1987,  the            Copyright  Office  issued   Saenger  a  copyright  for   Life            (registration number TX 1-983-136), which listed November 28,            1986 as the effective date of registration.                                         -6-                                          6                      During the period  of time when these  applications            were pending, Durkin  asked Saenger  about the  applications'            status.                                         Some time after the Copyright Office sent Saenger the            copyright registrations for Property and Life (the record  is            not clear precisely when),  Saenger informed Durkin that  the            copyrights had "come in from the Office."  Durkin did not ask            to see, nor did he see, the copyright registrations or any of            the                applications submitted to the Copyright Office prior to an            incident which occurred in April 1992.  According to  Durkin,            while  looking through  some files  in the  clerical area  at            Saenger,  he  inadvertently   encountered  a  file   entitled            "COPYRIGHT INFO."   He looked inside the file and  discovered            copies of the applications  and the letters described  above.            According to Durkin,  he brought the file to Bruce  Saenger's            office                   and                       demanded                               an                                  explanation for why he was not listed as            a copyright owner,  demanded his share  of the copyright  and            copyright revenues, and expressed his view that the copyright            registrations                         amounted to a violation of their oral agreement.            Saenger denies that such a confrontation ever took place.                       Prior to leaving Saenger in September 1992,  Durkin            avers that he had regular and frequent discussions with Bruce            Saenger                    concerning the copyright and revenue issues, something            Saenger                    denies.                                                        Durkin                                   states that Saenger repeatedly promised            him that he would  "get around to" changing the copyright  to            name  Durkin as a  co-author and co-owner  and would make  an                                         -7-                                          7            accounting for  monies owed Durkin  as a  result of  revenues            attributable to fiscal years 1989 to 1992.                      Durkin                             admits                                    that                                        after                                              he left Saenger in September            1992 he copied substantial portions of both Life and Property            and                used                     them in his own text, Fundamentals of Life, Accident,            and  Health  Licensing  Text  (hereinafter   "Fundamentals").            Saenger                    became                           aware                                of                                   Durkin's activities in April 1994.  The            following                      month, Saenger advised Durkin to discontinue copying            and publishing the  written material in  question, as it  was            copyrighted  by  Saenger.    Durkin,  however,  persisted  in            publishing                       and distributing the material.  Shortly thereafter,            Saenger filed suit  in federal district court.  The  district            court preliminarily enjoined publication and distribution  of            the Durkin materials and entered summary judgment for Saenger            on both its copyright infringement claims and Durkin's  state            law counterclaims.  This appeal ensued.                          The Copyright Infringement Issue                      The                          plaintiff in a copyright infringement case bears            the                burden                       of                         proving                                 "'(1) ownership of a valid copyright, and            (2)                [unauthorized] copying of constituent elements of the work            that                 are                     original.'"  Lotus Dev. Corp. v. Borland Int'l, Inc.,            49 F.3d 807, 813 (1st Cir. 1995), aff'd by an equally divided            court                ,                   116                       S. Ct. 804 (1996) (quoting Feist Public'ns, Inc. v.            Rural Tel. Serv. Co., 499 U.S. 340, 361 (1991)); see also CMM            Cable Rep., Inc. v.  Ocean Coast Props., Inc., 97 F.3d  1504,                                         -8-                                          8            1513                 (1st                      Cir.                          1996).                                                                   Only the first of these two prongs is at            issue                  in                     this                         case                              because Durkin does not deny or dispute that            he               copied                      the                         pertinent                                   material from Property and Life without            any                authorization                             from                                  Saenger.  Thus, the only issue before us            is whether  Saenger's copyrights  for Property  and Life  are            valid.                         To show ownership of a valid copyright, a plaintiff            bears the burden of proving  that the work, when viewed as  a            whole,                   is                      original and that he has complied with the requisite            statutory formalities.   See  Lotus, 49  F.3d at  813.   "'In            judicial proceedings, a certificate of copyright registration            constitutes                        prima                                                        facie                                                                    evidence of copyrightability and shifts            the                burden                       to                         the                             defendant to demonstrate why the copyright is            not                valid.'"                          Id. (quoting Bibbero Sys., Inc. v. Colwell Sys.,            Inc.               ,                  893                      F.2d 1104, 1106 (9th Cir. 1990)); see also 17 U.S.C.            S 410(c); CMM Cable, 97 F.3d at 1513.                       In  this case,  Saenger succeeded  in shifting  the            burden regarding the  validity of its copyrights in Life  and            Property by  producing copyright  registration  certificates.            Durkin attempted to meet the repositioned burden of proof  by            arguing  that   Saenger's   copyrights   were   obtained   by            misrepresentation and are, therefore, invalid.  We, like  the            district court, do not find this argument persuasive.                      The  crux  of Durkin's  theory  is  that  the  oral            agreement                      he                        allegedly                                  entered into with Saenger in April 1986,                                         -9-                                          9            which  Durkin  characterizes  as  a  partnership   agreement,            undermines the validity of  Saenger's copyrights in Life  and            Property.  Specifically, Durkin  alleges that he and  Saenger            orally agreed  in April 1986 that  he was to develop  written            materials for  Saenger and that he  and Saenger would be  co-            authors and co-owners of  the copyrights in those  materials,            including those now  titled Life and Property.  Thus,  Durkin            argues  that Saenger's  copyrights are  invalid because  they            violate                    the                        terms of the April 1986 oral agreement and because            the copyright applications  that Saenger submitted  contained            information other than that  which Saenger agreed they  would            contain as to ownership of the copyrights.  Saenger  contests            the                veracity                         of                           Durkin's                                    various allegations, but concedes that            they must be assumed to  be correct for the purposes of  this            appeal.    Even  so,  Durkin's  argument  encounters  several            difficulties.                        The Copyright Act of 1976 provides that  copyright            protection  generally attaches  to  the person  who  actually            creates a work.  See 17 U.S.C. S 201(a) ("Copyright in a work            . . . vests initially in  the author or authors of the  work.            The authors of a joint work are coowners of copyright in  the            work.").                                           "The Act carves out an important exception, however,            for  'works made  for hire.'"   Community  for Creative  Non-            Violence                                        v.                        R                        eid, 490 U.S. 730, 737 (1989) [hereinafter CCNV].            Where "a work [is] made for hire," the Act provides that "the                                        -10-                                         10            employer or  other person for whom  the work was prepared  is            considered the  author" and  owns the  copyright "unless  the            parties                    have                        expressly                                  agreed otherwise in a written instrument            signed by them."  17 U.S.C. S 201(b).                      As for the  scope of this exception to the  general            rule regarding copyright ownership, the 1976 Act, in relevant            part, provides  that a  "work [is] made  for hire"  if it  is            either:                        (1) a  work  prepared by  an  employee                    within  the   scope   of  his   or   her                    employment; or                       (2)  a   work  specially  ordered   or                    commissioned  for  use   as  .  .  .   a                    supplementary work, as a compilation, as                    an instructional  text,  as a  test,  as                    answer  material for  a test,  or as  an                    atlas, if the parties expressly agree in                    a written instrument signed by them that                    the work shall be considered a work made                    for hire. . . .             17 U.S.C. S 101.                            In                         this                              case, the parties agree that they did not sign          a written  instrument  stating  that the  materials  that  Durkin          prepared for  Saenger would be  considered works  made for  hire.          Accordingly, Life and Property can be considered "works made  for          hire"                only                     if                       they                            satisfy the requirements of section 101(1), that          is,  if they  were prepared  by Durkin  within the  scope of  his          employment with Saenger.                        The  Copyright Act  nowhere  defines  the  key  terms          "employee" or "scope of employment."  See CCNV, 490 U.S. at  739;          Melville  B. Nimmer  &  David Nimmer,  1  Nimmer on  Copyright  S                                        -11-                                         11          5.03[B][1] at 5-14.2 (1996).  In CCNV, the Supreme Court resolved          four conflicting judicial interpretations of these terms, see 490          U.S. at  738-39,   by construing them  to mean the  "conventional          master-servant relationship  as understood  by common-law  agency          doctrine."                                           I                      d. at 740.  The resulting directive from the Court is          unambiguous:                                              "To                           determine whether a work is [made] for hire under          the              Act,                   a                     court first should ascertain, using principles of [the]          general common law of agency, whether the work was prepared by an          employee  or  an  independent  contractor.    After  making  this          determination                      , the court can apply the appropriate subsection of S          101."  Id. at 750-51.  The Court provided a nonexhaustive list of          factors courts should use "[i]n determining whether a hired party          is an employee under the general  common law of agency."  Id.  at          751.  This list includes the following:                      the                        hiring                               party's right to control the manner                    and                        means                              by                                 which the product is accomplished                    . . . . the skill required; the source of the                    instrumentalities and tools; the location  of                    the work;  the duration  of the  relationship                    between the parties; whether the hiring party                    has                        the                            right to assign additional projects to                    the  hired party;  the  extent of  the  hired                    party's discretion over when and how long  to                    work;                          the                              method of payment; the hired party's                    role in hiring and paying assistants; whether                    the work is part  of the regular business  of                    the hiring party; whether the hiring party is                    in  business;   the  provision  of   employee                    benefits; and the tax treatment of the  hired                    party.          Id. at 751-52 (footnotes omitted) (citing Restatement (Second) of          Agency S 220(2) (1958)).   The Court completed its discussion  of                                        -12-                                         12          these factors  by cautioning that "[n]o  one of these factors  is          determinative."  Id. at 752.                           Under this standard,  the appellate record  indicates          that               Durkin                     cannot                            escape the reasonable inference that he prepared          these texts both while he  was a Saenger employee and within  the          scope of his employment with Saenger.  The evidence  demonstrates          that               the                   overwhelming majority of the agency factors that the CCNV          Court  highlighted  point  to  the  existence  of  an  employment          relationship between Durkin and Saenger.                        For instance, on Durkin's  version of events, he  and          Saenger recognized that he had some remaining work obligations to          another organization, ETS, but agreed in April 1986 that he would          begin to  work on these  texts immediately.   Specifically,  they          agreed                 that                      Durkin                            would                                  work nights and weekends on developing the          manuals, prior to his being able to assume his full-time position          as             Saenger's                       vice president in July 1986.  Thus, a fair reading of          Durkin's                   own                      affidavit                                indicates that the agreement he reached with          Saenger                  addressed the issues of when and how long he would work on          the manuals even as to the period of time between April and  July          1986.  In Durkin's words, "Even though I was employed by  another          organization at the time [viz., April 1986], Saenger and I agreed          that               I                 would                      develop                              these manuscripts . . . in the evenings and on          weekends."    Under CCNV,  this  feature  of  the  Durkin-Saenger          agreement  points  towards   the  existence   of  an   employment          relationship.                                        -13-                                         13                      Furthermore, regardless whether Durkin actually wrote          the manuals from scratch (as he alleges) or merely contributed to          them by modifying and expanding pre-existing material (as Saenger          counters), it is  undisputed that Durkin performed this work  for          Saenger and at its specific behest.  Despite his arguments to the          contrary,  Durkin's affidavit  in opposition  to the  preliminary          injunction indicates that Saenger retained a right to control the          manner                 and                     means by which the contested works -- Life and Property          --             were                  produced.                                                       This                                 feature of the Durkin-Saenger relationship,          too, militates in favor of a finding of employee status.                      Specifically, Durkin  swears  that, pursuant  to  the          alleged April 1986 oral agreement, Durkin "would develop" written          material, Saenger "would process" this material, and Durkin would          subsequently "edit  and proofread"  the text  prior to  printing.          Indeed,                  the                     record                            indicates that Saenger's office was an important          source                 of                   the                       instrumentalities, tools, and human resources used in          producing the works in  question.  According to the affidavit  of          Nancy Nisil, a  word processing clerk at Saenger, Nisil  received          handwritten                      sheets of paper from Durkin during the months of April          and              May                  1986                      "on                          an                             almost daily basis . . . which I converted into          Property .  . . and Life . .  . which were later to my  knowledge          published                    by                       The Saenger Organization." (emphasis added).  Nisil's          affidavit  is  corroborated  by  that  of  another  Saenger  word          processing                     clerk, Tina Petitt, which relates that she too received          handwritten sheets of paper from Durkin during April and May 1986                                        -14-                                         14          "on              an                 almost daily basis" that she "converted into Property . . .          and Life." (emphasis added).  The use of Saenger word  processing          equipment                    and                       personnel                                 in the production of the works in question,          and              the                  level                       of                          Saenger                                  control over the means of their production          that such  use entails, suggests  the existence  of an  employer-          employee    relationship    between   Saenger   and   Durkin.                          The understanding of the parties as to the nature  of          their  relationship is  also  probative  of the  existence  of  a          conventional master-servant relationship as understood by  common          law  agency doctrine.    See  Restatement (Second)  of  Agency  S          220(2)(i)                    (noting                           that                                "whether or not the parties believe they are          creating the relation  of master and servant"  is a matter to  be          considered, among others, in  determining whether one acting  for          another is a servant or an independent contractor).  While Durkin          would have us  believe that the April  1986 oral agreement was  a          partnership agreement, the record evidence fails to  substantiate          this  theory.  On  the contrary, the  record facts indicate  that          Durkin  himself  understood the  April  1986  oral  agreement  to          constitute an agreement regarding his employment with Saenger.                      Turning                              again to his preliminary injunction affidavit,          Durkin's words on this point are illuminating, albeit not in  the          way he would  like us  to understand them:   "Even  though I  was          employed by another organization at the time [viz., April  1986],          Saenger and I agreed that I would develop these manuscripts . . .                                        -15-                                         15          in the evenings and on weekends." (emphasis added).  Durkin's use          of             the                 word                      "another" is pregnant with meaning in the context that          confronts us.  The dictionary defines the adjective "another"  as          "different                     or                       distinct                                from the one first named or considered," and          as  "being one more in  addition to one or  a number of the  same          kind."  Webster's Third  New International Dictionary 89  (1986).          When Durkin  refers to his  employment with another  organization          (i.e.,                 ETS),                       it                         would                               appear that he understood the April 1986 oral          agreement to have provided him with a new employment relationship          with Saenger,  even as to  the period of  time between the  April          agreement                    and his assumption of full-time duties as Saenger's vice          president                    in                       July 1986.  Durkin appears to argue that he could not          have been Saenger's employee from April to July because he was an          ETS              employee                       during that period.  Durkin's own affidavit, however,          demonstrates                       that                           he                              understood the April agreement with Saenger as          providing him with a part-time job that would entail evening  and          weekend  work commitments  in  addition to  the  responsibilities          associated with his other, full-time position with ETS.  Durkin's          affidavit                    further establishes that both he and Saenger agreed that          this  moonlighting  arrangement   would  continue  until   Durkin          discharged                     his remaining commitment to ETS and thus became able to          assume                 full-time                          work                               responsibilities as Saenger's vice president.          Importantly,                       this                           view                                of the matter is one to which Durkin himself          subscribes.   In his  own affidavit as  to economic loss,  Durkin                                        -16-                                         16          describes himself  with the  following  words:   "I am  a  former          employee of The Saenger Organization." (emphasis added).                        Durkin's                               own                                  apparent                                           understanding of his relationship          with               Saenger                       thus suggests a finding of employee status.  So, too,          does the duration of his work relationship with Saenger (some six          years);                  the                      method                            of                               payment used during this six-year period (the          provision                    of                      a                        time-based, biweekly salary following the completion          of his  employment  with ETS);  and,  the provision  of  employee          benefits.  Durkin's tax treatment also points to the existence of          employee                   status.  Durkin had both federal and state taxes withheld          from               his                   Saenger paychecks, received W-2 forms for his salary, and          received                   1099                       miscellaneous forms for any bonuses that he received.          Finally, there is no  dispute that Durkin's work for Saenger  was          part               of                 Saenger's                           regular business, a factor that likewise suggests          the              existence of an employment relationship.  The only CCNV factor          that  works in  Durkin's favor  is the  level of  skill that  was          presumably                     required                             to                                develop these works, but this does not alter          the reality that the overwhelming majority of the agency  factors          highlighted  by the  CCNV  Court point  to  the existence  of  an          employment relationship between Durkin and Saenger.                           On  these undisputed  facts, the  district court  was          correct                  to                     conclude                             that                                  no reasonable juror could find in Durkin's          favor either that he was not employed by Saenger or that Life and          Property  were  not prepared  by  him  within the  scope  of  his                                        -17-                                         17          employment with Saenger.  Durkin's arguments to the contrary  are          unavailing.                        First, we cannot agree with Durkin's contention  that          the              April                    1986                        oral                             agreement "essentially moot[s]" the question of          whether Life and Property fall within the statutory definition of          works made "for hire."  This view of the matter does not  comport          with               either                      17 U.S.C. S 101 or the Supreme Court's ruling in CCNV.                      Second, even if one  assumes that Durkin and  Saenger          entered into the April 1986 oral agreement that Durkin describes,          Durkin's                   legal theory that the agreement constituted a partnership          agreement is unsupported by the record evidence.  While  Durkin's          affidavit as  to  economic loss  characterizes the  alleged  oral          agreement as a "partnership agreement" between himself and  Bruce          Saenger,                   on                     closer                            inspection that conclusory characterization does          not represent additional record evidence on the matter, but  only          amounts to Durkin's "spin" on the facts.                        Thus, Durkin himself describes the oral agreement  in          his preliminary injunction affidavit only as one that  delineated          employment responsibilities and payment  issues.  Nowhere in  the          record  does Durkin  describe  the  agreement as  one  that  even          mentioned  the  concept  or   elements  of  partnership.     Most          significantly,                         Durkin's                                 own description of the April 1986 agreement          makes no mention of an intent by the alleged principals to form a          partnership.  See, e.g., Cardullo v. Landau, 105 N.E.2d 843,  845          (Mass.                 1952)                      (indicating                                  that a partnership under Massachusetts law                                        -18-                                         18          is generally held to exist only  where such is the intent of  the          parties).    On the  contrary,  "[t]he  language  throughout  the          agreement                    was                        that                            of                               employment and not of partnership."  Walsh v.          Atlantic Research Assocs., 71  N.E.2d 580, 584 (Mass. 1947).   As          Durkin explains in his affidavit, the agreement provided that  "I          would come to work for TSO [i.e., Saenger] as a Vice  President."          (emphasis added).  Especially where it is undisputed that  Durkin          was              not                  a                    co-owner with Bruce Saenger of The Saenger Organization,          we cannot agree that a finder of fact could reasonably infer from          this manifestation of intent that the parties intended to form  a          partnership                      relationship.  See, e.g., Shain Inv. Co. v. Cohen, 443          N.E.2d 126, 129 (Mass. App. Ct. 1982) (indicating that members of          a partnership  are co-owners of  a business, not  just of a  work          product, thereby distinguishing  them from  individuals in  other          kinds of joint enterprises).                      The                          core                               of                                  Durkin's partnership argument would appear          to be his contention that Saenger was to pay him "[f]or his work"          in developing and marketing the manuals by providing him with  an          annual $42,000 salary and an equal share of the net revenues from          the              manuals                      he                        worked                               on.  This net revenue sharing, Durkin argues,          evidences the  existence  of a  partnership between  himself  and          Saenger.   But, even  if we assume  the allegation about  revenue          sharing to be true, such an arrangement about how Durkin would be          paid  for his  work  would  do little  to  substantiate  Durkin's          partnership theory because venerable and established law provides                                        -19-                                         19          that one who is only interested in the profits of a business as a          means for compensation for services rendered (i.e., for his work)          is  not a  partner,  but rather  someone  akin to  a  contractual          creditor.                                         See                                              Phipps                                                            v.                                  Little, 100 N.E. 615, 615-16 (Mass. 1913);          Estabrook                                      v.                       Woods                          ,                             78                                N.E. 538, 540 (Mass. 1906) (refusing to find          a partnership,  despite a profit  sharing arrangement, where  the          arrangement was essentially compensatory in nature and the  party          alleging  the existence of  a partnership "had  no right to  take          control                  of                     the business . . . or to interfere in the management of          it," even in the event of non-payment); see also Mass. Gen.  Laws          ch.              108A,                    S                      7(4)(a)&(b) (providing that "[t]he receipt by a person          of a share  of the  profits of a  business" is  not "prima  facie          evidence                   that                        he                          is                             a                               partner" where "such profits were received in          payment"  of, among  other  things,  "a debt  by  instalments  or          otherwise" or "[a]s wages of an employee").                      Finally, the "partnership distributions" that  Durkin          alleges  to have  received as  his share  of the  "partnership's"          revenue                  from                       the copyrighted works in question were not treated as          royalties on his 1099 miscellaneous federal income tax forms, and          were,  in  fact,  treated as  compensation  payments  --  not  as          partnership distribution income on K-2 forms -- for tax purposes.          As Saenger correctly points out, "[a]ll other references relating          to  the so-called  partnership  agreement are  lawyer  argument."          Without evidence to support it, Durkin's conclusory legal opinion          that               the                   oral                       agreement                                 was a partnership agreement cannot serve as                                        -20-                                         20          a            basis                  for                      a reasonable trier of fact to find that the agreement,          if             it               existed,                        constituted a partnership agreement.  In view of the          overwhelming factors present in the record favoring a finding  of          employee status, we do not see  any reason to view this case,  as          Durkin                 would                       have us, through the rubric of Oddo v. Ries, 743 F.2d          630              (9th                   Cir. 1984), a case that deals with the rights of partners          in copyrights held by their partnership.                      Therefore, to the extent  that Durkin was the  actual          author of Life and Property, either in part or in their entirety,          under  CCNV and  17 U.S.C.  S 101,  these works  fall within  the          category of  "works  made for  hire."   Under  the  work-for-hire          doctrine, as the Copyright Office correctly explained to Saenger,          "[i]f                an                   individual contributes to or creates a work in his or her          capacity  as  either an  officer  or  employee of  a  company  or          organization,                        the                           work                                is considered a 'work made for hire' and the          employer  .  . .  [is  considered]  the author  rather  than  the          individual."  This scenario fully pertains here.                        As indicated,  where  "a work  [is] made  for  hire,"          federal copyright law provides that "the employer or other person          for whom  the work was prepared"  owns the copyright "unless  the          parties have expressly agreed  otherwise in a written  instrument          signed                 by                    them."                                                     17                              U.S.C. S 201(b) (emphasis added).  In light of          this  statutory language,  the  fact  that there  is  no  written          agreement                    between                           the                               parties regarding ownership of the copyrights          in Life  and Property is  dispositive regarding  the validity  of                                        -21-                                         21          Saenger's copyrights.   Durkin's protestations about the  allege                                                                          e                                                                          d          oral agreement  with Saenger  concerning the  ownership of  thes          copyrights                     is thus entirely beside the point.  On these facts, and          given that Durkin conceded that he copied material from Life  and          Property without  Saenger's  authorization,  the  district  court          correctly                    concluded                             that                                  Saenger was entitled as a matter of law to          judgment in its favor  on its copyright infringement claim.   See          Feist              ,                 499                     U.S. at 361; CMM Cable, 97 F.3d at 1513; Lotus, 49 F.3d          at 813.                             The State Law Counterclaims                      After Saenger brought its copyright infringement suit          in federal  court, Durkin filed  state law counterclaims  against          Saenger alleging  breach  of  agreement, fraud,  and  unfair  and          deceptive                    business practices (the latter under Mass. Gen. Laws ch.          93A)               on                  the                      ground that Saenger wrongfully obtained its copyrights          in             Life                                  and                      Property                                                          by                                 misrepresenting itself as the author of the          works, and  thereafter failed  to  pay Durkin  his share  of  the          revenues                   from those works, pursuant to the alleged April 1986 oral          agreement.                                           The                         district                                  court entered summary judgment for Saenger          on  these  claims on  the  basis that  they  were barred  by  the          Massachusetts                        statute                               of                                  limitations and statute of frauds.  Durkin          appeals these determinations.   For the  reasons that follow,  we          agree with the result reached by the district court.2            2.  While the Copyright Act expressly preempts all causes of            action that fall within its scope, with a few narrowly drawn            exceptions, see 17 U.S.C. S 301; Data Gen. Corp. v. Grumman                                        -22-                                         22                      We  begin  by  noting that  a  six  year  statute  of          li                                                              t                    See Mass. Gen. Laws ch. 260, S 2.  A  shorter four year          statute pertains  to  chapter  93A actions  claiming  unfair  and          deceptive business practices, see Mass. Gen. Laws ch. 260, S  5A,          while                an                   even                       shorter                               three year statute of limitations pertains to          causes of action alleging fraud.  See Mass. Gen. Laws ch. 260,  S          2A.                        Under  Massachusetts law,  an  action for  breach  of          contract            mitations  applies in  Massachusetts  for  breach  of  contrac          actions.  generally  accrues  at  the  time  of  breach,  thereby          triggering the statute of limitations for purposes of determining            Sys. Support Corp., 36 F.3d 1147, 1164-65 (1st Cir. 1994),            and while the district court's preliminary injunction ruling            referred to this fact, see Saenger Org., Inc., v. Nationwide            Ins. Licensing Assocs., Inc., 864 F. Supp. 246, 250 n.4 (D.            Mass. 1994), the preemption issue was not briefed or argued            on appeal.  We need not reach the question of whether            Durkin's state law theories of recovery -- all of which in            some manner address themselves to the question of who owns            the copyrights in Life and Property -- are equivalent to            protections afforded by federal copyright law, and are thus            preempted, because our analysis today indicates that Durkin's            asserted state claims are not viable in any event.  The issue            is not purely academic, however, and we note that at least            one federal court that has addressed a similar situation has            found preemption.  See Miller v. CP Chemicals, Inc., 808 F.            Supp. 1238, 1246 (D.S.C. 1992) ("The Copyright Act affords a            presumption to the employer, under the work for hire            doctrine, that the employer shall receive the copyright, and            that such presumption will not be rebutted except by a            writing signed by the employer.  If the employee can bring a            lawsuit under state law based upon an alleged oral promise,            then the presumptions created under the Copyright Act would            be substantially, if not, totally undermined.  The court            finds that the plaintiff's breach of employment contract is            an artful restructuring of the copyright claim and is,            therefore, preempted.").                                               -23-                                         23          whether                  a                    claim                         is                            time-barred.  See International Mobiles Corp. v.          Corroon                  &                   Black/Fairfield & Ellis, Inc., 560 N.E.2d 122, 126 (Mass.          App.  Ct.  1990)  (citing  Campanella  &  Cardi  Constr.  Co.  v.          Commonwealth, 217 N.E.2d 925 (Mass. 1966) and Boston Tow Boat Co.          v. Medford  Nat'l Bank,  121 N.E.  491 (Mass.  1919)).   Durkin's          counterclaim  regarding Saenger's  breach  of  the  alleged  oral          agreement                    would                         be                            time-barred under this standard rule inasmuch as          the              breach,                      on Durkin's version of events, occurred either in July          1986,  when Saenger  improperly completed  the initial  copyright          applications,  or  November  1986,  when  Saenger  submitted  the          applications  to the  Copyright  Office and  thus  "fraudulently"          secured copyright registrations dated effective as of that  month          and              date.                                         Se                      e 17 U.S.C. S 410(d) (governing the effective date of          a            copyright                      registration).  On either contingency, Durkin's breach          of             contract                      claim,                            his                                chapter 93A action, and his vaguely asserted          fraud cause of action would be time-barred because they were  not          filed until August 1994,  thereby falling outside the  respective          six, four, and three year limitations periods.                      Durkin concedes as much and urges us, as he urged the          district court,  to  accept  his theory  that  the  Massachusetts          "discovery                     rule" applies to his situation.  The discovery rule can          operate to  delay the  accrual of a  cause of  action because  it          provides that "[a] cause of action will accrue when the plaintiff          actually                   knows of the cause of action or when the plaintiff should          have               known                     of the cause of action."  Riley v. Presnell, 565 N.E.2d                                        -24-                                         24          780, 785 (Mass. 1991)  (emphasis added).  Durkin argues that  the          district  court wrongly  granted  summary  judgment  for  Saenger          because, as a matter of Massachusetts law, he was entitled to  an          opportunity                      to                        persuade                                 a jury that he actually knew or should have          known                of                   Saenger's allegedly wrongful conduct on a date that would          make  his  August  1994  filing  timely  under  the  statute   of          limitations.  In support of this contention, Durkin quotes  Riley          for              the                  proposition                             that                                  "where, as here, the plaintiff has claimed          a trial by jury, any  disputed issues relative to the statute  of          limitations ought to be decided by the jury."  Id. at 787.                        Specifically, Durkin's theory is that he did not know          in actual fact  of Saenger's wrongful  behavior until April  1992          when,  one day,  he accidentally  came across  the file  labelled          "COPYRIGHT INFO."   Moreover, Durkin contends  that there was  no          reason that  he should have known  of Saenger's fraud, breach  of          agreement, or deceptive and unfair business practices before then          because  he  reasonably  and  justifiably  relied  on   Saenger's          representations                          regarding                                  ownership of the copyrights.  On Durkin's          view of the matter, Saenger was his partner and therefore  Durkin          had              every                    reason                          to                             believe that Saenger would do what he agreed to          do about  the copyrights  and had no  reason to  believe that  he          (Saenger) would do otherwise.                        Durkin's                               theory lacks merit.  "Under the Massachusetts          discovery  rule, the  running of  the statute  of limitations  is          delayed                  while 'the facts,' as distinguished from the 'legal theory                                        -25-                                         25          for the cause  of action,' remain 'inherently unknowable' to  the          injured party."  Catrone v. Thoroughbred Racing Ass'n of N.  Am.,          Inc., 929 F.2d 881, 885 (1st Cir. 1991) (emphasis added) (quoting          Gore v. Daniel O'Connell's Sons, Inc., 461 N.E.2d 256, 259 (Mass.          App.               Ct.                   1984)); see also Williams v. Ely, 668 N.E.2d 799, 804 n.7          (Mass. 1996) ("Some of our opinions have stated that a  plaintiff          seeking to show that the statute of limitations did not begin  to          run              must                   demonstrate that the claim was 'inherently unknowable,' a          standard that is  no different from, and is used  interchangeably          with,                the                    'knew or should have known' standard.") (emphasis added)          (construing Riley).   Durkin does not  contend that the facts  he          discovered                     in April 1992 were somehow inherently unknowable to him          so much as he argues that  they were unknown to him.   Therefore,          despite his  protestations to  the contrary,  Durkin's state  law          counterclaims are all time-barred on the basis of the  undisputed          facts and the  applicable Massachusetts law.  This conclusion  is          reached no matter how one chooses to view the issue.                        First, although there  is some dispute as to when  in          1986 the  initial  copyright  application was  completed,  it  is          undisputed that sometime in  1986 Durkin was present in the  room          when Saenger  drafted the  application which  listed The  Saenger          Organization alone as the copyright's owner.  Because Durkin  was          not listed as a co-owner, as Durkin alleges Saenger had agreed he          would                be,                    Saenger breached the oral agreement in Durkin's presence                                        -26-                                         26          in 1986.3   If Durkin saw the document at that time, then he  was          aware of  the breach  and  the statute  of limitations  was  duly          triggered.   Durkin, however, denies  seeing the application  and          instead argues that he did not bother to look at it or to examine          whether the  information contained  therein was  correct or  not.          Durkin justifies his actions (or rather, inaction) by arguing, in          essence, that  he felt fully justified  in relying on Saenger,  a          partner, to do what they had agreed.  As our previous  discussion          explains,                    there                          is                            no                               evidence that Durkin and Saenger entered into          a partnership agreement, and certainly not in the legal sense  of          that  term.   Even  if  we  assume such  an  agreement,  Durkin's          deliberate indifference  to what was  contained in the  copyright          applications                       -- information that was inherently knowable to him --          cannot serve to toll  the running of the statute of  limitations.          See El y, 668  N.E.2d at  804 n.7  (describing the  Massachusetts          standard                   for                       determining when a plaintiff can avail himself of the          discovery rule).                        Durkin's reliance on Riley is thus misplaced  because          that case  does not vitiate the  standard rule that a  "nonmoving          party                can                    fend off a motion for summary judgment [only] by setting          forth                specific                        facts                              sufficient to demonstrate that every essential          element                  of                     its                        claim                              or                                 defense is at least trialworthy."  Catrone,          929 F.2d  at  884.    That  standard is  not  met  here.    Under            3.  We primarily analyze the facts against Durkin's contract            theory of recovery because that cause of action has the most            generous limitations period (viz., six years).                                           -27-                                         27          Massachusetts                       law, "[t]he plaintiff bears the burden of presenting          facts  sufficient  to  take  the  case  outside  the  statute  of          limitations."  Id. at 885 (citing Franklin v. Albert, 411  N.E.2d          458,               463                   (Mass. 1980)).  Here, there is no trialworthy issue as to          the statute of limitations question because there is not  "enough          evidence for a jury to return a verdict for the nonmoving party."          Id. at 884-85 (citing  Anderson v. Liberty Lobby, Inc., 477  U.S.          242, 249-50 (1986)).  No reasonable juror could fail to find that          Durkin should have known the facts underlying his cause of action          for breach of agreement, or that such facts were knowable to him,          see                          Catrone                    ,                      929                          F.2d                               at                                  885; Ely, 668 N.E.2d at 804 n.7; Gore, 461          N.E.2d                 at                    259,                        at                           the                               time in 1986 that the application was drafted          in his presence with the prejudicial omission of his name.                       Second, it is undisputed that Saenger applied for and          received                   copyright registration certificates for Life and Property          from  the  Copyright  Office.    Under  federal  copyright   law,          recordation  of a  document in  the Copyright  Office "gives  all          persons constructive notice  of the facts stated in the  recorded          document."    17  U.S.C. S  205(c).    A  copyright  registration          certificate issued by  and filed with  the Copyright Office  thus          serves                 to                    put the world on constructive notice as to the ownership          of the  copyright and  of the  facts stated  in the  registration          certificate.  In  this way, the  Copyright Act's protections  are          analogous                    to                      the                          protections that federal law affords patents.  See          Wise                            v.                  Hubbard                       ,                          769                              F.2d 1, 2  (1st Cir. 1985) ("The United States                                        -28-                                         28          Supreme Court has consistently held that the issuance of a patent          and              its                  recordation in the Patent Office constitutes notice to the          world of its existence.") (citing Sontag Chain Stores Co. Ltd. v.          National Nut  Co. of  Cal., 310 U.S.  281, 295  (1940); Wine  Ry.          Appliance  Co. v. Enterprise  Ry. Equip. Co.,  297 U.S. 387,  393          (1936); Sessions  v. Romadka, 145 U.S.  29, 50 (1892); Boyden  v.          Burke              ,                 14                    How.                        (55                            U.S.)                                  575, 582 (1852)).  On the undisputed facts          of             the                 case,                      therefore,                                 Durkin had constructive notice of Saenger's          claim                of                  exclusive                            ownership of the copyrights in Life and Property          as of November 1986, the effective date of registration for  both          works.                        Third, it is undisputed that all of the manuals  that          Saenger published, including those at issue in this case,  openly          displayed a United States copyright notice that announced to  the          world that Saenger was  the copyright owner.  Inasmuch as  Durkin          concedes                   that                        he                          worked                                 on and with these same materials during the          period  that he  worked at  Saenger (1986-1992),  Durkin must  be          presumed to have had actual notice that Saenger had breached  the          terms of the alleged oral agreement more than six years before he          filed his contract counterclaim in August 1994.                        Durkin's argument that  the discovery rule tolls  the          statutes                   of                      limitations on his state law counterclaims until April          1992,                when                     he stumbled upon the "COPYRIGHT INFO." file at Saenger,          is             thus                  unavailing.                                                           Durkin was at best deliberately indifferent as          to             what                  was                      contained in the copyright applications when they were                                        -29-                                         29          drafted                  in                     his                        presence                                 and he was constructively, if not actually,          on notice of Saenger's incompatible claim of exclusive  copyright          ownership.                                          Saenger's                               alleged fraud, breach, and deceptive business          practices were  thus knowable  to him  in 1986  had he  exercised          minimal                  and                     reasonable                                diligence.  By no stretch of the imagination          were               the                   facts                        of                           which                                 Durkin complains "inherently unknowable" to          him              prior                    to                      April                            1992.                                   Catrone, 929 F.2d at 885; Ely, 668 N.E.2d          at      804     n.7;    Gore ,    461     N.E.2d     at     259.                       In view of these undisputed facts and the  applicable          legal                standards,                          no                             reasonable juror could fail to find that Durkin          knew or,  through  reasonable  diligence, should  have  known  of          Saenger's                    claim                         of                            exclusive ownership of the copyright in Life and          Property more than six years before he filed his counterclaim for          breach  of agreement, more  than four years  before he filed  his          chapter                  93A                      action                            for                                deceptive and unfair business practices, and          more               than                    three years before he filed his cause of action alleging          fraud.                                   Therefore, Durkin's counterclaims were extinguished by the          limitations period as a matter of law.  See Daboub v. Gibbons, 42          F.3d               285,                    291 (9th Cir. 1995) (upholding grant of summary judgment          on ground that state law  causes of action, raised in context  of          copyright infringement case, were time-barred given what and when          the plaintiffs actually  knew, or  through reasonable  diligence,          should have known about allegedly wrongful conduct).                                        -30-                                         30                      Durkin's fallback position is similarly unpersuasive.          Specifically,  Durkin argues  that  the statutes  of  limitations          applicable                     to his counterclaims should be tolled pursuant to Mass.          Gen.               Laws                    ch. 260, S 12 because Saenger fraudulently concealed his          alleged breach of agreement and deceptive business practices.  We          need not dwell on this argument.  "Where a fiduciary relationship          exists, the failure  adequately to disclose the facts that  would          give               rise                    to                       knowledge of a cause of action . . . is equivalent to          fraudulent                     concealment                                for purposes of applying S 12."  Demoulas v.          Demoulas Super Markets,  Inc., 677 N.E.2d 159, 174 (Mass.  1997).          Here,                however, as we have discussed, there was no partnership, and          thus               no                 fiduciary                           relationship, between Durkin and Saenger.  In the          absence of a fiduciary relationship, "'the estoppel provision  of          Mass.                Gen.                     Laws                         Ann.                              ch.                                  260, S 12 is generally not available where          the plaintiff  is  capable  of discovering  the  facts  allegedly          concealed.'"  Wise, 769 F.2d at 4 (quoting Burbridge v. Board  of          Assessors,  417 N.E.2d  477,  480 (Mass.  App.  Ct. 1981)).    As          discussed                    above, Durkin was fully capable of discovering the facts          that Saenger allegedly concealed from him through the expenditure          of but minimal effort.   Finally, nothing in the record  suggests          fraudulent  concealment.     Saenger   secured  valid   copyright          registrations and  affixed  copyright  notices to  the  works  in          question, which Durkin worked on over a period of many years.  As          Saenger correctly  argues:   "Public notice  is not  concealment.          Public display is not deception."                                         -31-                                         31                      Our resolution of  the statute  of limitations  issue          obviates our  need to consider  the dispute  between the  parties          regarding                    the statute of frauds.  In short, the fact that Durkin's          counterclaim for  breach  of  contract was  extinguished  by  the          limitations period essentially moots the question of whether  the          April                1986                    oral                         agreement could have been enforced despite the fact          that it was never memorialized in a writing.                                     Conclusion                      The                          district                                  court                                        properly found that no genuine issue          of material  fact  existed as  to  Saenger's ownership  of  valid          copyrights and Durkin's infringement of them, and thus  correctly          concluded that Saenger was entitled to judgment in its favor as a          matter of law.  The district court also correctly determined that          the applicable Massachusetts statutes of limitations bar Durkin's          various state law counterclaims against Saenger.  For the reasons          discussed above, we  therefore ascribe no  error to the  district          court's rulings.                      Affirmed.  Costs to appellee.                                        -32-                                         32
