Copyright Law: Spring 2004 Professor Susanna Fischer CLASS of March 8, 2004

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

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 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

JOINT WORKS Is collaboration enough to establish joint authorship?

THOMSON v. LARSON (2d Cir. 1998)

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?

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

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?

Aalmuhammed v. Lee (9th Cir ) Did the court agree with Aalmuhammed’s contention that Malcolm X was a joint work? Why or why not? Is the intention test as applied in Thomson and Aalmuhammed fair? Does it promote the policies of the Copyright Clause?

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

TYPE 2 WORK MADE FOR HIRE - SPECIALLY ORDERED/COMMISSIONED WORKS Lulirama v. Axcess Broadcasting (5th Cir. 1997) – jingles Remember that work must fall into one of the 9 statutory categories for commissioned works!

SPECIALLY ORDERED/COMMISSIONED WORKS Lulirama v. Axcess Broadcasting (5th Cir. 1997) Was there a work made for hire agreement? There was a jingle writing agreement with notation by Axcess that it was a work for hire Were the jingles works made for hire? No Why or why not? Did not fall into statutory categories in section 101. Audio works only - not audiovisual works

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 Record companies said that this could be the case anyway as compilations or collective works 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? Some other time? 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

DURATION OF COPYRIGHT OWNERSHIP How long is it constitutional for a copyright to last? Remember: Constitution says Congress can gives Authors protection “for limited Times” How long should a copyright last? Should it be for life of author plus term of years or for a specific term of years, or a specific term of years plus a renwal term?

DURATION UNDER 1909 ACT 1909 Act: initial and renewal term (like Statute of Anne). How long were these under the 1909 Act? Under the Statute of Anne? What is the purpose of a renewal term? NOTE idea of statutory beneficiaries

POLICY OF RENEWAL STRUCTURE Under 1909 Act both initial and renewal term were 28 years (Statute of Anne 14 and 14 years) Rationale for renewal terms - highly paternalistic: idea of a renewal term was to give author new independent rights, so author would not suffer from bad initial bargain – note long term is only beneficial to author if actually gets it – we will study one way to ensure this : termination right If author dead, benefit statutory beneficiaries: spouse, kids, executor, administrator

RENEWALS UNDER 1909 ACT How did you renew copyright under the 1909 Act?

RENEWALS UNDER 1909 ACT How did you renew copyright under the 1909 Act? You had to file a renewal registration within the last year of the copyright term – for many works, renewal was not sought. Or problems with renewal registration. That is why House Report characterized it as “one of the worst features of the present copyright law” – life of author more clear

RENEWALS UNDER 1909 ACT Could the author assign his renewal expectancy before renewal vests? See Fred Fisher Music (1943) ; Corcovado (1993) - Yes Isn’t this contrary to the purposes of renewal?

RENEWALS UNDER 1909 ACT Can the author assign the statutory beneficiaries’ renewal rights? - No See Saroyan (1987) Saroyan: “Everyone’s got to die, but I always thought an exception would be made in my case”

VESTING OF RENEWAL TERM How long into the 28th year of the initial term must the author live to vest the renewal interest of the author’s assignee? Conflict between cases: Marascalco v. Fantasy, Inc. (9th Cir. 1991) and Frederick Music Co. v. Sickler (S.D.N.Y. 1989)

AUTOMATIC RENEWAL For works published prior to Jan. 1, 1964, the author had to file a renewal registration in CO in 28th year or work fell into public domain 1992 the 1976 Act amended to provide for option of automatic renewals for works published between 1964 and 1977 What is the benefit of voluntary renewal? – 304(a)(2)(B)

RENEWAL WRAP UP POINTS Author can assign rights in renewal term before rights vests and such assignments will be binding on author Limit on author’s right to assign renewal term - must survive until renewal term vested Case law unclear about when in 28th year renewal term vested

MORE WRAP-UP POINTS ON RENEWAL TERM Under automatic renewal provisions, renewal vests on either of 2 dates - when registration filed or if no registration filed, at beginning of renewal term – 304(a)(2)(B).

CHANGE IN DURATION What basic change did the 1976 Act introduce for duration? Why did it change the law?

DURATION PROVISIONS Published and unpublished works created on or after 1/1/78: s. 302, 305 Unpublished works created but not published prior to 1/1/78: s. 303, s 305 Published works created pre 1/1/78 : s. 304

DURATION S. 303 Unpublished works created before 1/1/78 What is the copyright term? What are special provisions on expiration? Why do you think these provisions are in the Act?

DURATION:1909 Act Works S. 304 What is the copyright duration for a work created in 1910 under the 1976 Act? What about the copyright duration for a work created in 1930? What about the duration for a work created in 1970? What about the duration for a work created in 1980?

WRAP UP POINTS: DURATION 1976 Act changes system of duration to life plus term of years For works published prior to Jan 1, 1978, 1976 Copyright Act has retained 2 year system of copyright duration 1998 Sonny Bono Term Extension Act amends to add 20 years more. This was challenged in Eldred v. Ashcroft.