class 9 copyright, winter, 2010 authorship and ownership randal c. picker leffmann professor of...

Class 9Copyright, Winter, 2010

Authorship and Ownership

Randal C. PickerLeffmann Professor of Commercial Law

The Law School

The University of Chicago

773.702.0864/[email protected] © 2005-10 Randal C. Picker. All Rights Reserved.

April 18, 2023 Copyright © 2005-10 Randal C. Picker 2

101: Joint Work

A “joint work” is a work prepared by two or more authors with the

intention that their contributions be merged into inseparable or interdependent parts of a unitary whole.


201: Ownership of Copyright

(a) Initial Ownership. Copyright in a work protected under this title

vests initially in the author or authors of the work. The authors of a joint work are coowners of copyright in the work.


Creating a Poem

Ode to Authoring A writes first line B writes second line A writes third line B writes fourth line and voila

Poem is done and is intended to be read as whole but we have a record that lets us know how it was created


Understanding Jointness

Is jointness a statement about … The nature of the work? Chain of title as to contributions? The intentions of the participants in creating

the work about their relationship with each other?


Structuring Book Copyrights

Hypo I write a book I sign a contract with the U of Chicago Press to

publish the book. The contract provides that: “Although Picker’s name will appear on the cover of

the book and the spine, Picker agrees that for all purposes of copyright law, he is not the author of the book and that the U of Chicago Press is the author of the book.”

Who is the author of the book?


Answer

Consequences Again: goes to duration and termination

rights under 203(a)(3)


Classifying Group Works

Consider four situations 1. Standard Work (with Help) 2. Collective Work 3. Joint Work 4. Joined and Separate Works


Standard Work with Help

Hypo I write a book Editor works with me and makes

suggestions, which I incorporate How does copyright apply to this situation?


Answer

Not a Joint Work Even though inseparable whole, Childress

says general convention is not a joint work How do we get there?

Two-part test for jointness• Both co-authors make copyright worthy

contributions• Mutually intended to be co-authors


Collective Works

Hypo Individuals A through F write short stories

on football Publisher assembles these into a single

volume, Go Short: An Anthology of Football Short Stories

How does copyright apply to this situation?


Answer

Book will qualify as collective work A “collective work” is a work such as a

periodical issue, anthology, or encyclopedia, in which a number of contributions, constituting separate and independent works in themselves, are assembled into a collective whole.


Answer Collective works are treated as

compilations The term “compilation” includes collective

works. Also note definition of work made for hire

WMFH is … “(2) a work specially ordered or commissioned for

use as a contribution to a collective work … if the parties expressly agree in a written instrument signed by them that the work shall be considered a work made for hire”


103 (b)

The copyright in a compilation or derivative work extends only to the material contributed by the author of such work, as distinguished from the preexisting material employed in the work, and does not imply any exclusive right in the preexisting material. The copyright in such work is independent of, and does not affect or enlarge the scope, duration, ownership, or subsistence of, any copyright protection in the preexisting material.


201: Ownership of Copyright

(c) Contributions to Collective Works. Copyright in each separate contribution to a

collective work is distinct from copyright in the collective work as a whole, and vests initially in the author of the contribution. In the absence of an express transfer of the copyright or of any rights under it, the owner of copyright in the collective work is presumed to have acquired only the privilege of reproducing and distributing the contribution as part of that particular collective work, any revision of that collective work, and any later collective work in the same series.


Answer

Authorship possibilities Publisher can be author of individual stories

and the entire volume if stories commissioned under WMFH contract

Publisher can get assignment of copyrights in individual stories and be author of collective work


Answer

Individuals A through F can be authors of individual stories and retain copyright to those stories, while allowing publication in the volume; Publisher will be author of volume, treated as collective work


Joint Work

Hypo Landes and Posner get together to write an

article Posner drafts, Landes drafts, P revises, L

revises, etc., etc. How does copyright apply to this situation?


Answer

Article will be treated as joint work A “joint work” is a work prepared by two or

more authors with the intention that their contributions be merged into inseparable or interdependent parts of a unitary whole.

Standard Examples of Joint Works Novels, paintings, academic articles:

inseparable


Answer

Songs: music and lyrics: interdependent parts of unitary whole

Consequences Coownership of copyright under 201(a) Duration: 70 years after last surviving

author’s death (302(b)) Termination: See 203(a)(1)


Joined and Separate Work Hypo

I make movie about alien yogurt that takes over the world

I have third-party do seven special effects shots We don’t sign a contract and nothing is specified

about copyright The seven shots are incorporated into the movie

How does copyright apply to this case? Is this any different than my line-by-line poem?


204

Execution of transfers of copyright ownership (a) A transfer of copyright ownership, other

than by operation of law, is not valid unless an instrument of conveyance, or a note or memorandum of the transfer, is in writing and signed by the owner of the rights conveyed or such owner’s duly authorized agent.


101: Transfer of Copyright Ownership

A “transfer of copyright ownership” is an assignment, mortgage, exclusive

license, or any other conveyance, alienation, or hypothecation of a copyright or of any of the exclusive rights comprised in a copyright, whether or not it is limited in time or place of effect, but not including a nonexclusive license.


Answer: Effect Associates v. Cohen

Joined and Separate Work EA retains copyright to its shots, because

there could be no transfer of ownership of EA’s rights, given that 204(a) requires that the transfer be in writing

Cohen has copyright in everything else in the movie

Not treated as co-authors


Answer: Effect Associates v. Cohen

Where does this put us? Cohen can show movie, given 9th Circuit’s

holding on the license (need not be in writing; see definition of transfer of copyright ownership)

EA can do what it wants with the special-effects shots


Thomson v. Larson

Core Facts 1989: Aronson and Larson start work on

Rent 1991: Split via written agreement

Title: “RENT a rock opera by Jonathan Larson. Original concept and additional lyrics by Billy Aronson.”

Aronson agrees he won’t be considered co-author of RENT


Thomson v. Larson

1992: New York Theatre Workshop (NYTW) advises Larson to get a bookwriter to help with the musical

1995: Larson agrees to let NYTW hire Thomson as dramaturg

Contract says $2000 fee as full consideration

Billing as dramaturg No mention of copyright


Thomson v. Larson

1995: Larson and Thomson work together One document, kept by Larson on Larson’s

computer Nov. 1995: Larson executes contract with

NYTW Specifies Larson as sole author and gives

Larson approval, control and ownership rights


Thomson v. Larson

23 Jan 1996 Final dress rehearsal Larson dies

Next Month Four people, including Thomson, make final

changes


Thomson v. Larson

April, 96: Thomson seeks more $ and recognition; Larson heirs offer 1% of author’s royalties

Thomson sues for co-authorship status and $

Wants 16% of author’s share of royalties• See footnote 11 for calculation: 50% of what she

participated in creating What does she get?


Starting Points

Two Contracts The Larson/Aronson Contract The NYTW/Thomson Contract

Can an “author” waive that status by contract?


The Approach in Childress

Single Text, Single Author, Multiple Participants Editors and Authors

Focus on 1. both make independently copyrightable

contributions 2. mutual intent to be co-authors


How Should We Apply That Here?

Larson’s intent easy here Me and me alone

Does Thomson have a separate interest in her work? With what consequences?

class 9 copyright, winter, 2010 authorship and ownership randal c. picker leffmann professor of...

Documents

u copyright

joint work u

collective work u

help u

situations u

joint work n

ownership of copyright

book u editor