INTRODUCTION TO INTELLECTUAL PROPERTY LAW Copyright Ownership Monday October

Derivative Work What is an example of a derivative work? See s. 103(b) To what extent is a derivative work copyrightable?

AUTHORSHIP The Constitution and Copyright Act does not define the term “author” Is an author – A. person who intellectually conceived original works B. person who financed the work? C. Someone else?

WORKS MADE FOR HIRE WHAT’S A WORK MADE FOR HIRE?

DEFINITION OF WORKS MADE FOR HIRE - 2 TYPES A “work made for hire” is defined in section 101 works prepared by employees AND within the scope of employment (and also 201(b) requirement that work be prepared FOR employer) specially ordered or commissioned works - must be within certain categories and there must be a written work made for hire agreement.

CONSTITUTIONALITY OF WORK MADE FOR HIRE DOCTRINE ? To think about: is the work made for hire doctrine constitutional? Can providing money to create a work amount to “authorship”? Note that not all countries in the world have such a doctrine

CCNV v. Reid What are the relevant facts of this dispute, and what issue did the U.S. Supreme Court have to rule on?

CCNV v. Reid: Who is an “employee”? According to the U.S. Supreme Court, is the sculpture a work for hire under either part of the definition in section 101 of the 1976 Copyright Act? What is the Court’s reasoning? What is the correct test for determining when a work was prepared by an employee?

CCNV v. Reid Court canvasses 4 possible tests for when a work is prepared by employee in scope of employment 1. RIGHT TO CONTROL test 2. ACTUAL CONTROL test 3. AGENCY LAW test 4. FORMAL SALARIED EMPLOYEE test Supreme Court uses statutory interpretation, legislative history, and policy argument based on need for certainty to conclude that (3) applies.

AGENCY TEST Must consider “the hiring party’s right to control the manner and means by which the product is accomplished” look at nonexhaustive list of factors to determine this Applies these factors to find that Reid not an employee. Remands to determine whether a joint work.

REID IS AN INDEPENDENT CONTRACTOR True, some control by CCNV in providing specifications for sculpture But weighing against that: skilled occupation, provision of own tools, work in own premises, no daily supervision of work by CCNV, absolute freedom to decide when and how long to work, payment for specific job, total discretion in hiring and paying assistants, CCNV not in the sculpture business, CCNV did not pay payroll or social security taxes or pay other employee benefits

WHO IS THE COPYRIGHT OWNER OF THE SCULPTURE? If it is not a work for hire, doesn’t Reid own copyright in the sculpture?

WHO IS THE COPYRIGHT OWNER OF THE SCULPTURE? If it is not a work for hire, does Reid solely own copyright in the sculpture? Supreme Court says CCNV may be a joint author. Remands for determination of this issue. Submitted to mediation.

LATER CONSENT JUDGMENT in CCNV (Jan. 7, 1991) Consent judgment: CCNV sole owner of original physical sculpture while Reid is sole author of the work. Reid has exclusive right to make 3-D reproductions of sculpture (without base/inscription), while both Reid and CCNV can make 2-D reproductions (if CCNV gives credit to Reid). Further dispute about Reid’s access to original sculpture when he sought to make a master mold. Parties came to some agreement in unpublished order.

JOINT WORK Aalmuhamed v. Lee