Copyright Law: Fall 2008 Professor Susanna Fischer CLASS of October 8, 2008 – Joint Works

Copyright Ownership: Work for Hire – Wrap Up Exception to general rule that person who actually creates a work is the author who owns copyright in that work 2 kinds of work for hire (s. 101) Determination of whether someone is an employee for the purposes of work for hire is made under common law of agency (CCNV v. Reid)

SCOPE OF EMPLOYMENT CCNV dealt with when an author is an employee. How do the courts determine “scope of employment”? Courts rely on test in Restatement (Second) of Agency. Employer must show: 1. Work of type employee hired to perform 2. Creation of work occurred “substantially within the authorized time and space limits” of the job 3. Work “actuated, at least in part, by a purpose to serve” interests of employer

SCOPE OF EMPLOYMENT See Avtec (4 th Cir. 1995) (CB p. 321) – development of computer programs at employee’s home outside of normal business hours not within scope of employment. Is this consistent with Cramer (4 th Cir. 1995) (CB p. 321)

SCOPE OF EMPLOYMENT Courts take a case-by-case fact-specific approach to this issue in applying the Restatement factors

THE TEACHER EXCEPTION If the teacher exception exists, it is an exception to the work made for hire doctrine for academic writings Did the 1976 Act abolish it? Many college and university IP policies adopt the view that teacher exception exists See CUA IP Policy at: /IntellectualProperty/i ndex.cfm

THE TEACHER EXCEPTION Are tests and homework assignments prepared on teacher’s own time and at home works for hire?

THE TEACHER EXCEPTION What about academic writing by college or university professors? Se Weinstein v. University of Illinois, 811 F.2d 1091 (7 th Cir. 1987) (Easterbrook, J.) Hays v. Sony, 847 F.2d 412 (7 th Cir. 1998) (Posner, J.)

SPECIALLY ORDERED/COMMISSIONED WORKS Statutory categories in s. 101 – work must fall into one of these 9 categories “a work specially ordered or commissioned for use as a contribution to a collective work, as a part of a motion picture or other audiovisual work, as a translation, 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.”

Lulirama v. Axcess Broadcasting (5 th Cir. 1997) [C p. 326] Were the advertising jingle at issue works for hire? Why or why not?

SOUND RECORDINGS AND WORKS MADE FOR HIRE In 1999 Congress added sound recordings to section 101 list of works that could be commissioned works for hire “Millennial Flip-Flop”(2000)

WORK FOR HIRE AGREEMENTS At what point do parties have to execute work made for hire agreements under 101(2)? At time of commissioning? When commissioning party pays creator? When work is being created? Compare Schiller (7th Cir.) [C p. 328] and Playboy v. Dumas (2d Cir.) [C p. 329]

WORK FOR HIRE AGREEMENTS Does the agreement have to include “work for hire” language? See Armento v. Laser Image, Inc. (W.D.N.C. 1996) [C p. 329]

COPYRIGHT OWNERSHIP Can more than one person be an “author”?

JOINT WORKS Is collaboration enough to establish joint authorship?

SECTION 101 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.”

SECTION 201 The authors of a joint work are co-owners of copyright in the work – meaning?

RIGHTS OF JOINT AUTHORS (CB p. 332) Each has equal and undivided interest in work Each has right to use or non-exclusively license work as so wishes Each can transfer own ownership interest without consent of other, but can’t transfer interest of other jt author without consent. Duty to account to other joint author

THOMSON v. LARSON (2d Cir. 1998)

INTENTION REQUIREMENT: JOINT WORKS Joint authorship can be manifested in a written agreement. What if there is no written agreement?

INTENTION TEST FOR JOINT WORKS If there is no written agreement between the authors, there is a 2 pronged test to determine whether there is joint ownership (Childress, Thomson) According to Thomson, P trying to establish co- ownership must establish: 1. Each putative co-author made independently copyrightable contributions to work (collaboration not enough by itself) – see Gaiman case where this is doubted 2. Each putative co-author fully intended to be co-authors

What issue was left undecided in Thomson?

THOMSON Does this case effectively add any judicial requirements to the statutory definition of a joint work? If so, what?

GAIMAN What part of the Thomson test did Judge Posner reject for comic books? Is his reasoning persuasive?