Class 9 Copyright, Winter, 2010 Authorship and Ownership Randal C. Picker Leffmann Professor of Commercial Law The Law School The University of Chicago Copyright © Randal C. Picker. All Rights Reserved.

May 23, 2015Copyright © Randal C. Picker2 101: Joint Work n A “joint work” is a work u prepared by two or more authors with the intention that their contributions be merged into inseparable or interdependent parts of a unitary whole.

May 23, 2015Copyright © Randal C. Picker3 201: Ownership of Copyright n (a) Initial Ownership. u 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.

May 23, 2015Copyright © Randal C. Picker4 Creating a Poem n Ode to Authoring u A writes first line u B writes second line u A writes third line u B writes fourth line and voila n Poem is done and is intended to be read as whole but we have a record that lets us know how it was created

May 23, 2015Copyright © Randal C. Picker5 Understanding Jointness n Is jointness a statement about … u The nature of the work? u Chain of title as to contributions? u The intentions of the participants in creating the work about their relationship with each other?

May 23, 2015Copyright © Randal C. Picker6 Structuring Book Copyrights n Hypo u I write a book u I sign a contract with the U of Chicago Press to publish the book. The contract provides that: w “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.” n Who is the author of the book?

May 23, 2015Copyright © Randal C. Picker7 Answer n Consequences u Again: goes to duration and termination rights under 203(a)(3)

May 23, 2015Copyright © Randal C. Picker8 Classifying Group Works n Consider four situations u 1. Standard Work (with Help) u 2. Collective Work u 3. Joint Work u 4. Joined and Separate Works

May 23, 2015Copyright © Randal C. Picker9 Standard Work with Help n Hypo u I write a book u Editor works with me and makes suggestions, which I incorporate n How does copyright apply to this situation?

May 23, 2015Copyright © Randal C. Picker10 Answer n Not a Joint Work u Even though inseparable whole, Childress says general convention is not a joint work u How do we get there? w Two-part test for jointness Both co-authors make copyright worthy contributions Mutually intended to be co-authors

May 23, 2015Copyright © Randal C. Picker11 Collective Works n Hypo u Individuals A through F write short stories on football u Publisher assembles these into a single volume, Go Short: An Anthology of Football Short Stories n How does copyright apply to this situation?

May 23, 2015Copyright © Randal C. Picker12 Answer n Book will qualify as collective work u 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.

May 23, 2015Copyright © Randal C. Picker13 Answer n Collective works are treated as compilations u The term “compilation” includes collective works. n Also note definition of work made for hire u WMFH is … w “(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”

May 23, 2015Copyright © Randal C. Picker n (b) u 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.

May 23, 2015Copyright © Randal C. Picker15 201: Ownership of Copyright n (c) Contributions to Collective Works. u 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.

May 23, 2015Copyright © Randal C. Picker16 Answer n Authorship possibilities u Publisher can be author of individual stories and the entire volume if stories commissioned under WMFH contract u Publisher can get assignment of copyrights in individual stories and be author of collective work

May 23, 2015Copyright © Randal C. Picker17 Answer u 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

May 23, 2015Copyright © Randal C. Picker18 Joint Work n Hypo u Landes and Posner get together to write an article u Posner drafts, Landes drafts, P revises, L revises, etc., etc. n How does copyright apply to this situation?

May 23, 2015Copyright © Randal C. Picker19 Answer n Article will be treated as joint work u 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. n Standard Examples of Joint Works u Novels, paintings, academic articles: inseparable

May 23, 2015Copyright © Randal C. Picker20 Answer u Songs: music and lyrics: interdependent parts of unitary whole n Consequences u Coownership of copyright under 201(a) u Duration: 70 years after last surviving author’s death (302(b)) u Termination: See 203(a)(1)

May 23, 2015Copyright © Randal C. Picker21 Joined and Separate Work n Hypo u I make movie about alien yogurt that takes over the world u I have third-party do seven special effects shots u We don’t sign a contract and nothing is specified about copyright u The seven shots are incorporated into the movie n How does copyright apply to this case? Is this any different than my line-by-line poem?

May 23, 2015Copyright © Randal C. Picker n Execution of transfers of copyright ownership u (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.

May 23, 2015Copyright © Randal C. Picker23 101: Transfer of Copyright Ownership n A “transfer of copyright ownership” is u 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.

May 23, 2015Copyright © Randal C. Picker24 Answer: Effect Associates v. Cohen n Joined and Separate Work u 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 u Cohen has copyright in everything else in the movie u Not treated as co-authors

May 23, 2015Copyright © Randal C. Picker25 Answer: Effect Associates v. Cohen n Where does this put us? u Cohen can show movie, given 9 th Circuit’s holding on the license (need not be in writing; see definition of transfer of copyright ownership) u EA can do what it wants with the special- effects shots

May 23, 2015Copyright © Randal C. Picker26 Thomson v. Larson n Core Facts u 1989: Aronson and Larson start work on Rent u 1991: Split via written agreement w Title: “RENT a rock opera by Jonathan Larson. Original concept and additional lyrics by Billy Aronson.” w Aronson agrees he won’t be considered co- author of RENT

May 23, 2015Copyright © Randal C. Picker27 Thomson v. Larson u 1992: New York Theatre Workshop (NYTW) advises Larson to get a bookwriter to help with the musical u 1995: Larson agrees to let NYTW hire Thomson as dramaturg w Contract says $2000 fee as full consideration w Billing as dramaturg w No mention of copyright

May 23, 2015Copyright © Randal C. Picker28 Thomson v. Larson u 1995: Larson and Thomson work together w One document, kept by Larson on Larson’s computer u Nov. 1995: Larson executes contract with NYTW w Specifies Larson as sole author and gives Larson approval, control and ownership rights

May 23, 2015Copyright © Randal C. Picker29 Thomson v. Larson u 23 Jan 1996 w Final dress rehearsal w Larson dies u Next Month w Four people, including Thomson, make final changes

May 23, 2015Copyright © Randal C. Picker30 Thomson v. Larson u April, 96: Thomson seeks more $ and recognition; Larson heirs offer 1% of author’s royalties u Thomson sues for co-authorship status and $ w Wants 16% of author’s share of royalties See footnote 11 for calculation: 50% of what she participated in creating n What does she get?

May 23, 2015Copyright © Randal C. Picker31 Starting Points n Two Contracts u The Larson/Aronson Contract u The NYTW/Thomson Contract n Can an “author” waive that status by contract?

May 23, 2015Copyright © Randal C. Picker32 The Approach in Childress n Single Text, Single Author, Multiple Participants u Editors and Authors n Focus on u 1. both make independently copyrightable contributions u 2. mutual intent to be co-authors

May 23, 2015Copyright © Randal C. Picker33 How Should We Apply That Here? n Larson’s intent easy here u Me and me alone n Does Thomson have a separate interest in her work? With what consequences?