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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.
April 18, 2023 Copyright © 2005-10 Randal C. Picker 3
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.
April 18, 2023 Copyright © 2005-10 Randal C. Picker 4
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
April 18, 2023 Copyright © 2005-10 Randal C. Picker 5
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?
April 18, 2023 Copyright © 2005-10 Randal C. Picker 6
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?
April 18, 2023 Copyright © 2005-10 Randal C. Picker 7
Answer
Consequences Again: goes to duration and termination
rights under 203(a)(3)
April 18, 2023 Copyright © 2005-10 Randal C. Picker 8
Classifying Group Works
Consider four situations 1. Standard Work (with Help) 2. Collective Work 3. Joint Work 4. Joined and Separate Works
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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?
April 18, 2023 Copyright © 2005-10 Randal C. Picker 10
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
April 18, 2023 Copyright © 2005-10 Randal C. Picker 11
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?
April 18, 2023 Copyright © 2005-10 Randal C. Picker 12
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.
April 18, 2023 Copyright © 2005-10 Randal C. Picker 13
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”
April 18, 2023 Copyright © 2005-10 Randal C. Picker 14
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.
April 18, 2023 Copyright © 2005-10 Randal C. Picker 15
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.
April 18, 2023 Copyright © 2005-10 Randal C. Picker 16
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
April 18, 2023 Copyright © 2005-10 Randal C. Picker 17
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
April 18, 2023 Copyright © 2005-10 Randal C. Picker 18
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?
April 18, 2023 Copyright © 2005-10 Randal C. Picker 19
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
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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)
April 18, 2023 Copyright © 2005-10 Randal C. Picker 21
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?
April 18, 2023 Copyright © 2005-10 Randal C. Picker 22
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.
April 18, 2023 Copyright © 2005-10 Randal C. Picker 23
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.
April 18, 2023 Copyright © 2005-10 Randal C. Picker 24
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
April 18, 2023 Copyright © 2005-10 Randal C. Picker 25
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
April 18, 2023 Copyright © 2005-10 Randal C. Picker 26
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
April 18, 2023 Copyright © 2005-10 Randal C. Picker 27
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
April 18, 2023 Copyright © 2005-10 Randal C. Picker 28
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
April 18, 2023 Copyright © 2005-10 Randal C. Picker 29
Thomson v. Larson
23 Jan 1996 Final dress rehearsal Larson dies
Next Month Four people, including Thomson, make final
changes
April 18, 2023 Copyright © 2005-10 Randal C. Picker 30
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?
April 18, 2023 Copyright © 2005-10 Randal C. Picker 31
Starting Points
Two Contracts The Larson/Aronson Contract The NYTW/Thomson Contract
Can an “author” waive that status by contract?
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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
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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?