First, not true. Trade secrets are protected in a number of ways. Second, that's why I said "not unlike." instead of "are."
There are few, if any, things relating to employment in any way which aren't amenable to contract.
"Work for hire" clauses, by definition, vest copyright interests, patent interests and sometimes but not always other proprietary interests in one party or group of parties to the contract, and not in another or others. The term "proprietary interests" usually but not always means "'certain but not all' property rights."
Are you really saying I was obfuscating? That I was attempting to confuse? That seems a gratuitous insult, very much unlike you. Perhaps you meant something else.
We were talking about ownership rights of material. Whether some of this material was actually subject to copyright seemed in question. There was also an underlying question as to whether ownership or control were subject to other protection besides copyright. Just because someone can't be successfully sued for copyright infringement, doesn't mean they aren't liable for other conversions.
Last things first, "WFH only applies when there's an ownership issue." You're right ab definito on this. Because that's what "work for hire" clauses are about, assigning ownership. Where there is no ownership issue, the clause itself is not at issue and wholly immaterial to the discussion.
However, as to the thrust of your argument that there is no ownership absent ability to copyright -- you're wrong. A restaurant may argue other forms of proprietary interest besides copyright were conveyed by a work for hire clause, or in some other way By way of example, if you google work for hire agreements, you'll see many (and probably all drafted by someone competent) including language which extends beyond copyright and often including the the specific term "proprietary interests." "Proprietary interest" may become a term of art for a reservation of rights broader than those specifically named, and an indication to the court regarding (at least) one party's intent to hold all rights not otherwise relinquished.
Excuse me for interrupting but there's something of a leitmotif developing. Your National Geographic "fact pattern" is a "hypothetical," not a "real life example." A real life example is something which actually happened. I'm not messing with you here, but nailing the language down. Using words exactly is critical to meaningful legal analysis. Within the context of a legal discussion you sometimes use them loosely, ambiguously or incorrectly. Again, no offense intended. IMO, you write well, very well in fact.
"Work for hire" is a common term (linguistically and as term of contract) and a big deal in consultants' employment contracts, more so than anywhere else. (My guess is that why it's such a big deal here.) I've done four or five cases including IP as it relates to employment (both as a "research attorney" for the court of appeals, and as a party attorney). Yet, I've never heard the term "work-for-hire basis" used in quite the way I understand it to be used here; i.e., as a term encapsulating the respective rights and obligations of the parties to the employment contract without any further reference to the clause itself or any other circumstances of the contract. Rather "work for hire" usually describes a specific, written, clause; a part of a larger employment agreement, which describes assignments of rights for intellectual property, the creation of which was at least part of the express purpose of the employment agreement. More on this later.
Photographs are IP, that's true. The "under the meaning of the law" part is true, too; but I'm not sure that means what you think it does. It's certainly not dispositive as to anything else. Photographs are covered by copyright; parts of recipes are not; while others may be.
The metaphor between magazine and menu is inexact, and the hypothetical may or may not be relevant (in the legal meaning of the term) to any given recipe situation and to any given contract which includes an express or implied "work for hire" clause. Whether it does, depends on the wording of the "work for hire" clause in the contract. It's not enough to merely wave the words "work for hire" around as though they're a thaumaturgic talisman. The "legal" meaning of any particular clause is governed by the specific language, the intent of the parties, industry practice, and a number of other factors. But, specific language, if there is any, is usually determinative.
One of the first things law students learn when they take Property is the concept of "property as a 'bundle of rights.'" Included among the "bundle" are the rights to give away, sell, lease, rent, share, lend some of those rights, etc. (collectively, the right of alienation). Had N. G. "returned certain rights" to me, I would be allowed to exercise them -- whatever those rights were. Because the term "returned" is unclear, and because the term "certain" is undefined it's hard to know more. I'm left wondering what you meant by the hypothetical. More than that NG owned the rights to the photographs because that's what the contract said, but that's the totality of the argument.
I'm guessing your point is that photographs are property, and recipes can never be. However, that photographs were property was not in doubt. Nor was there any doubt that recipes per se are not covered by copyright. I think you're actually arguing that recipes can never be property because they're not property which is shown because they're not covered by copyright law like other pieces of IP. If so, the argument is false.
I'm not sure I understand what you mean by "only a lawyer." Are you insulting my profession? Me? Why?
Your remark also begs the question of why you're offering an opinion on a legal issue if you feel that way about the profession. If you felt personally slighted by something I said, I assure you I never intended to offend, merely to inform. I meant no insult. I disagreed with what you said, no more.
If I wanted to be insulting, I'd ask "Why bring in 'real property?' When did the conversation switch to land?"
But obviously you didn't mean "real" as in "real property," you meant "real" as in "actual." However, even that is imprecise because the bundle of rights isn't the same as to all forms of property. Some "actual" interests in property are decidedly different from others just as "actual." Distinguishing the interests is critical to understanding the parties' rights and obligations. In the case of this specific sentence and post, the "something" to which you refer is unclear. Is it the menu from the previous post? Is it some recipe? If a recipe, what does the recipe say? Does it include a vivid description of a visit with the fisherman who caught the fish, along with a vague description of what was for dinner and how it was cooked, like an Elizabeth David recipe? Is it the paradigmatic bare list of ingredients coupled to a similarly spare list of instructions (add, stir, bake at 325F, etc.)?
Some of these things ARE property in which an interest could be held. To whatever extent something is property, someone may assert a proprietary interest. If the law defines a thing as outside the protection of legal ownership, than there can be no legal ownership -- by definition.
Let's get down to cases: If you're talking about ownership of the design and contents of the printed menu that formed the basis for the hypothetical in your prior post, parts of it (at least) ARE subject to copyright. I believed the menu wasn't a mere list, because the hypothetical stated the chef "designed" it and you referred to the "physical menu" itself. The implication is that the "design" itself conferred some value associated with the physical menu, as in artwork. If the chef did no more than type a list and choose a font, then I misunderstood, didn't "know" as much as I thought and was wildly, unequivocally wrong. A published list (qua list) isn't subject to any form of protection of which I'm aware. The prose by Elizabeth David including the "recipe" is not only IP, it's covered by copyright -- up to a point. -- because it's a literary creation .
The bare recipe is not subject ot copyright. Normally, no one has any "rights" to a recipe. However, it's easy to create a hypothetical where rights are held. For instance, if A and B are two parties to a contract and the contract specifies that as to any recipe developed by A for B, that A cannot subsequently use it, publish it, share it , sell it, or do anything else with it, then those are "proprietary rights" conferred by contract. One of the cute things is that, C, a third party, who wasn't party to the contract, isn't governed by them. So, if C somehow discovers the super secret recipe for "coffee with milk and sugar," C could use it without liability.
Note also, that the publish, share and sell are also typically covered by "non disclosure," clauses when they're part of an employment contract.
Take it for what it's worth,