Joint Works, Collective Works, and Duration Intro to IP – Prof Merges

Joint Authorship Section 101 definition – “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.”

Denzel & Spike

Aalmuhammed v. Lee Good example of Hollywood practices, norms and culture, and their relationship to copyright law Who brought Aalmuhammed into the project? Why no contract?

Why is this not a “work made for hire”? Section 101: (2) 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,... if the parties expressly agree in a written instrument....

Work made for Hire: Contract language Creator hereby agrees that her Work is a work made for hire and, to the extent that the Work is not a work made for hire, Creator hereby transfers all right, title, and interest in all intellectual property rights in the Work to Company. – (Define terms: “Creator”, “Work”, “Company”)

Aside on “writing credit” and arbitration in Hollywood Normal process is to handle complaints and hold proceedings in “insider” arbitration groups, e.g., MPAA Role of collective bargaining: Writer’s Guild, etc.

Why is Aalmuhammed willing to litigate? Not a “repeat player,” not worried about norms/reputation in Hollywood “You’ll never eat lunch in this town again” – no power over him...

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.

Basic elements (1)A copyrightable work (2) Two or more “authors” (3) Intent to merge their contributions into inseparable or interdependent parts of a unitary whole

Joint Authorship: examining the “author” requirement Ninth Cir.: “authorship is not the same thing as making a valuable and copyrightable contribution” – Aalmuhammed was not an “author” of the movie – Who was? Director (Spike Lee – contracted with movie company) Producer? Editor?

Nimmer v. Goldstein

Nimmer vs. Goldstein Goldstein: Separate copyrightability test Nimmers: Joint product must be copyrightable, that is all

“Auteur theory” Continental tradition of authorial control Director as author of a film

John Huston

Asphalt Jungle

Joint Authorship: examining the intent requirement Intent to do what? – Merge contributions (statute) – To be joint authors Second and Seventh Circuit cases

Intent of BOTH parties to be joint authors – Who has decision making authority – How the parties bill themselves – “other evidence” Looking for “objective manifestations of intent to be co- authors” Work for hire agreements of other contributors

Result of joint authorship? Undivided interest in the whole Duty of accounting to co-authors Each can license non-exclusively Need all to agree to license exclusively or to assign Duration measured by last live

Modern challenge: Open Source Software Are the modified programs jointly authored by all of the different programmers in the chain? Is each new modification simply a derivative work based on the previous program?

Copyright Duration year term for works published with notice, running from registration, extended for another 14 years if a renewal was timely filed Extended initial term to 28 years. A simple history of the term of copyright 1909 Extended renewal term to 28 years. 1/1/78 Changed basic term from 56 years to life of the author plus 50 years Extended terms of all existing copyrights by 20 years and changed basic term for new works to life of the author plus 70 years.

Copyright Renewal Required under 1909 Act Good technique to differentiate between still-active works and those that no longer are worth the cost of maintaining Bring back renewal?

Renewal and transfers For tomorrow, but – Renewal concept still lives on in “termination of transfer” provisions of Copyright Act

Pre-1978: Dual System Post-1978: Unitary System 1/1/ Pre If published before 1923, the work is now in the public domain Statutory, limited term copyright applies to published and some registered but unpublished works. Common law protection applies to all other works (1)Federal statutory copyright available for all works fixed in tangible media, including pre-1978 works still protected by copyright (2)Common law anti- copying protection abolished except for unfixed works The construction of the public domain

When First Published With Proper Notice When First Fixed 1/1/ year term running from publication with notice, extended to a total of 95 years IF a renewal was timely filed (28 initial + 28 renewal + 19 under ’76 Act + 20 Sonny Bono) 28-year term running from publication with notice, extended to total of 95 years automatically (28 initial + 28 renewal + 19 under ’76 Act + 20 Sonny Bono) (1)Sole and joint authors: life of the (last surviving) author, plus 70 years (2)Anonymous and pseudonymous works and works made for hire: 120 years from creation or 95 years from publication, whichever ends first This chart applies CURRENTLY to: works published before 1/1/78, and works created on or after 1/1/78 (§§ 302, 304(a), (b))

If Not Published Before 12/31/2002 If Published Before 12/31/2002 (1)Sole and joint authors: life of the author, plus 70 years (2)Anonymous and pseudonymous works and works made for hire: 120 years from creation or 95 years from publication, whichever is shorter (3)BUT term expires no earlier than 12/31/2047 This chart applies CURRENTLY to: works created before 1/1/78 but NOT published or registered before 1/1/78 (§ 303) (1)Sole and joint authors: life of the author, plus 70 years (2)Anonymous and pseudonymous works and works made for hire: 120 years from creation or 95 years from publication, whichever is shorter, (3)BUT term expires no earlier than 12/31/2002

/1/78 A Copyright Term Example Margaret Mitchell publishes Gone With the Wind in 1936 Margaret Mitchell dies in 1948 Her estate renews the copyright in GWTW in 1963, (c) renewal extends from 1964 to 1992 The ’76 Act adds 19 years to the renewal term The Sonny Bono Act adds another 20 years to the renewal term 28 years ( )28 years ( )19 yrs ( )20 yrs ( )

Mickey then (1928)Mickey now (2003) Eldred v. Ashcroft (S. Ct. 2003) the power “to promote the Progress of Science and Useful Arts, by securing for limited Times to Authors... The exclusive Right to their... Writings”

Mickey then (1928)Mickey now (2003) Eldred v. Ashcroft (S. Ct. 2003) “[W]hen, as in this case, Congress has not altered the traditional contours of copyright protection, further First Amendment scrutiny is unnecessary.”

Congress does not have carte blanche Perpetual extensions “are not before us,” the Court said If they were... Then what?

Problem Dec 1, years from publication, or 120 from creation, whichever is shorter; here, 95 years after 2010 (plus the “nd of year” rule) is Dec. 31, 2115 Dec 31, 2066: 70 years after death; pre- writing contract irrelevant (no WFH)