Copyright Law: Spring 2002 Professor Susanna Fischer CLASS 13 February 25, 2002

GOALS FOR CLASS To learn about joint work To learn about transfer of copyright ownership

WRAP UP POINTS: WORKS MADE FOR HIRE Don’t forget about the two types of work made for hire in section 101 CCNV holds that courts should apply the general common law of agency to determine whether the work was prepared by an employee or an independent contractor, and hence which provision of section 101 may apply

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 See p. 9 of Supp - additional language included in 2000 to basically invalidate this change Ginsburg attributes change to anti- record industry public at time of peer-to- peer controversies (like Napster)

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.) and Playboy (2d Cir.)

WORK FOR HIRE AGREEMENTS Schiller (7th Cir.): work for hire agreement not signed by both parties; and also too late - writing needs to be signed before creation Playboy (2d Cir.) - just agreement must precede creation, not writing. Endorsed checks by artist bearing legend that works were made for hire were acceptable as work for hire agreements

WORK FOR HIRE AGREEMENTS Armento v. Lasar Image, Inc. (W.D.N.C. 1996) indicates that agreement doesn’t have to use “work for hire agreement” language, but ruling is open to question since it treats assignments (which can be terminated: we’ll discuss later in course) with work for hire agreements (which cannot be)- it is safer to expressly use “work for hire” language in agreement

JOINT WORKS What’s a joint work? See s. 101 definition What rights does each co-author of a joint work have? (See section 201)

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.

RIGHTS OF JOINT AUTHORS Each has equal and undivided interest in work Each has right to use or license work as so wishes Duty to account to other joint author

THOMSON v. LARSON (2d Cir. 1998) Relevant Facts? Issue? What remedies does Thomson seek? How does S.D.N.Y. rule? How does 2d Circuit rule? Reasoning?

JOINT WORKS Is collaboration enough to establish joint authorship?

INTENTION REQUIREMENT: JOINT WORKS Independently copyrightable contribution AND “intention at the time the writing is done that parts be absorbed or combined into an integrated unit” Joint authorship can be manifested in a written agreement. What if there is no written agreement?

WRAP-UP: 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, Thompson) A P trying to establish co-ownership must establish: 1. Each putative co-author made independently copyrightable contributions to work 2. Each putative co-author fully intended to be a co-author

MORE ON INTENTION TEST The joint work intention test is not just SUBJECTIVE. You must look at the relationship -- e.g. how the collaborator regarded herself in terms of billing and credit, decisionmaking, and right to enter into contract

THOMSON Does this case effectively add any judicial requirements to the statutory definition of a joint work? If so, what is it? 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 is it? The additional requirement focuses on the intention of one of the parties What issue was left undecided in Thomson? Whether a contributor in Thomson’s position had any rights in her own contribution.

Aalmuhammed v. Lee (9th Cir ) Did the court agree with Aalmuhammed’s contention that Malcolm X was a joint work? Why or why not?