COPYRIGHT LAW 2008 PROFESSOR FISCHER THE CATHOLIC UNIVERSITY OF AMERICA OCT

HUGE EXCEPTION TO COPYRIGHTABILITY: GOVERNMENT WORKS

AUTHORSHIP 3 possible philosophical concepts of authorship: A. Conception of the work B. Execution of the Work C. Financing the Work

Lindsay v. R.M.S. Titanic et al. Which conception of authorship does this court choose?

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 (1989) Facts of dispute? Issue for U.S. Supreme Court?

CCNV v. Reid: Who is an “employee”? According to the U.S. Supreme Court, is the sculpture a work for hire under the definition in section 101 of the 1976 Copyright Act? Specifically, was the work 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 (Aldon Accessories 2d Cir, also 4 th and 7 th Cir) 3. AGENCY LAW test (Easter Seals – 5 th Cir, DC Court of Appeals in CCNV) 4. FORMAL SALARIED EMPLOYEE test (Dumas (1989) – 9 th Cir)

AGENCY TEST Must consider “the hiring party’s right to control the manner and means by which the product is accomplished” and also nonexhaustive list of other factors to determine this (see CB p. 140)

REID IS AN INDEPENDENT CONTRACTOR What is the reasoning of Court – is it right?

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? Supreme Court says CCNV may be a joint author. Remands for determination of this issue. Submitted to mediation.

WHY DOES IT MATTER Whether a work is a work made for hire?

TERMINATION OF TRANSFERS Work for hire is exempt If not, 35 years after work’s publication, copyright owner has a 5 year period to terminate grants of right of publication (or terminate other grants for 5 year period starting 35 years after the grant) (see s. 203)

OTHER ISSUES Different duration period for works for hire (See s. 302 – NOT LIFE PLUS 70, but 95 years from publication or 120 years from creation, whichever expires first) Exempt from moral rights for works of visual art in s. 106A

LATER CONSENT JUDGMENT in CCNV (Jan. 7, 1991) Terms of this judgment? 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.

AYMES v. BONELLI (2d Cir. 1992) CB p. 274 Were Aymes computer programs works made for hire according to the 2d Circuit? Why or why not? No. Some CCNV factors are more significant than others, and these caused balance to weigh in Aymes’ favor Which CCNV factors were the most significant? Right to control means & manner of creation, skill required, provision of employee benefits, tax treatment of hiring party, whether hiring party has right to assign additional projects to hired party

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