The definition of authorship reflects the conflicting interests of authors and publishers.
Joint ownership of copyright is possible. For example, in COMMUNITY FOR CREATIVE NON-VIOLENCE, the Supreme Court remands the matter to determine if the sculpture at issue was jointly created. Whether a work is jointly created depends in part on its date of creation; works treated differently before and after 1976.
Co-tenants of joint property can both use property and grant others license to use property. They cannot, however, act in manner that diminishes the rights of other tenants. Any profits made by granting license must be shared. Note that a common solution to co-tenant disputes over real property is partition, but it's difficult to divide intellectual property so neatly. A co-tenant may require another co-tenant to account for profits (but cannot challenge deals the co-tenant made after the fact).
Note how the requisite intentionality of authors to made a joint work was changed by the 1976 Act. According to the 2d Circuit, a lyricist who intended to unite his words with a pre-existing melody created a joint work under the 1909 Act, the TWELFTH STREET RAG case. In contrast, the 1976 Act requires that each author intend to create a joint work.
Note the use of mediation and arbitration as alternatives to litigation in the COMMUNITY FOR CREATIVE NON-VIOLENCE case. Access to sculpture to make cast is one term of informal settlement between parties. This is evidence of the psychological dimension of a legal dispute.
Requirements of a "work made for hire" enumerated in statute., s201.
An important case in the work for hire area is EPOCH PRODUCING CORP. where plaintiff's application to renew copyright in "Birth of a Nation" rejected because predecessor in interest was simply a financer and did not directly supervise the movie production.
The scope of the work for hire doctrine has expanded over the course of legislative history to encompass more situations of possible authority.
DZ: The evidence of legislative intent is unclear.
Works for hire are an example of transferred ownership of copyrights.
Perhaps copyrights should go to project financer to encourage art patronage.
Is the Supreme Court's reliance on agency law in COMMUNITY FOR CREATIVE NON-VIOLENCE well placed? Would commissioned projects proceed on more certain terms if the Supreme Court relied on statutory, rather than common law grounds?
The mutual intent necessary to create a work for hire is something like the mutual intent necessary to form a binding contract between two parties. Questions one might ask: Did each party contribute work that is copyrightable independent of the work done by other parties? (This would exclude labor-intensive, fact-based research). What are the objective manifestations of parties' conduct? When is it proper for courts to inquire into subjective intent? Would a few strict constructions encourage parties to make their agreements more explicit?
What level of formality can court expect in cases of commissioned artwork? Do artists have access and understanding of legal agreements necessary to bargain on level ground with corporate entities? Should courts respect informal customs?
s201: Ownership of copyright
A work is for hire only when: one of the nine categories specified in the statute is present, the work is specially commissioned, and a written agreement exists, or when the author is an employee. Determination of employee status is a relatively straightforward application of common law doctrines of agency.
Andrien v. Southern Ocean County Chamber of Commerce (3d Cir. 1991)
Series of maps produced through collaboration. One gave instructions and other translated ideas into print. According to 3d Circuit, an author is the intellectual authority and does not necessarily make a muscular contribution to the work.
Marco v. Accent Publishing Co. (3d Cir. 1992)
Case concerns the ownership of photographs of jewerly. The court concludes that the photographs "were not prepared by an employee within the scope of his or her employment" because the magazine did not exercise creative authority over the project. The photographer is characterized as an independent contractor.
Aymes v. Bonelli (2d Cir. 1992)
Determination of agency requires weighing several factors. According to court, REID does not establish any dispositive factor. Some relevant factors: the hiring partner's artistic control, the skill level required, provision of employee benefits, payment of payroll taxes, whether hiring party has right to assign additional projects to the hired party.
Childress v. Taylor (2d Cir. 1991)
Defendant produces character material for defendant playwright to put in proper form. Defendant claims sole authorship to prevent plaintiff from using another playwright. Plaintiff claims joint authorship to allow subsequent use.
Friedman v. Stacey Data Processing Services (No. Dist. IL, 1990)
Evidence of parties understanding in creating a contract to create office software program is relevant to determination of copyright ownership.
Effects Associates v. Cohen (9th Cir. 1990)
Transfer of exclusive rights to special effects movie footage must be made in writing; customary verbal agreements of movie industry not controlling. However, a non-exclusive transfer is exceptional, s204 does not require transfer of non-exclusive right to be in writing. Producer of special effects footage can license other uses, but cannot sue movie producer for copyright infringement.