Copyright Law: Spring 2006 Professor Susanna Fischer CLASS of Feb. 21, 2006

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?

WORK MADE FOR HIRE: TO THINK ABOUT Does the CCNV test for a work made for hire, as elaborated in Aymes v. Bonelli, enhance the stated policy goal in CCNV of enhancing certainty and predictability?

SCOPE OF EMPLOYMENT CCNV dealt with whether an author is an employee. How do the courts determine “scope of employment” ?

SCOPE OF EMPLOYMENT CCNV dealt with when an author is an employee. How do the courts determine “scope of employment”? See Avtec (CB p. 144) –development of computer programs at employee’s home outside of normal business hours Courts rely on test in Restatement (Second) of Agency. Employer must show: 1. Work of type employee hired to perform 2. Creation of work occurred “substantially within the authorized time and space limits” of the job 3. Work “actuated, at least in part, by a purpose to serve” interests of employer

AGREEMENTS Sometimes used to try to enlarge scope,but if too broad will simply be treated as assignments, not as converting a work into a work made for hire

THE TEACHER EXCEPTION If the teacher exception exists, it is an exception to the work made for hire doctrine for academic writings Did the 1976 Act abolish it? Many college and university IP policies adopt the view that teacher exception exists See draft CUA IP Policy at: npage/

WORK FOR HIRE FOR NON PROFIT ENTITY SET UP FOR ARTIST Martha Graham School v. Martha Graham Center, (2d Cir. 2004)

SPECIALLY ORDERED/COMMISSIONED WORKS Statutory categories in s. 101 – work must fall into one of these 9 categories “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, as a translation, as a supplementary work, as a compilation, as an instructional text, as a test, as answer material for a test, or as an atlas, if the parties expressly agree in a written instrument signed by them that the work shall be considered a work made for hire.”

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 “Millennial Flip-Flop”(2000)

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 v. Dumas (2d Cir.)

WORK FOR HIRE AGREEMENTS Does the agreement have to include “work for hire” language? See Armento v. Lasar Image, Inc. (W.D.N.C. 1996)

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?