Copyright Law: Fall 2006Professor Susanna Fischer

CLASS of

October 11, 2006

OWNERSHIP: WORKS FOR HIRE, JOINT WORKS

Copyright Ownership: Work for Hire – Wrap Up

• Exception to general rule that person who actually creates a work is the author who owns copyright in that work

• 2 kinds of work for hire (s. 101)• Determination of whether someone is an

employee for the purposes of work for hire is made under common law of agency (CCNV v. Reid)

Dominant Employees nominally employed by a corporation

• E.g. Martha Graham or loan out corporations for motion pictures.

• Is the Second Circuit’s ruling in the Martha Graham case a good decision as a matter of policy?

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”?

SCOPE OF EMPLOYMENT• CCNV dealt with when an author is an employee.

How do the courts determine “scope of employment”?

• 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

SCOPE OF EMPLOYMENT

• See Avtec (4th Cir. 1995) (CB p. 321) –development of computer programs at employee’s home outside of normal business hours not within scope of employment.

• Is this consistent with Cramer (4th Cir. 1995) (CB p. 321)

SCOPE OF EMPLOYMENT• Courts take a case-by-case fact-specific approach

to this issue in applying the Restatement factors

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 CUA IP Policy at: http://policies.cua.edu/IntellectualProperty/index.cfm

THE TEACHER EXCEPTION• Are tests and homework

assignments prepared on teacher’s own time and at home works for hire?

THE TEACHER EXCEPTION• What about academic

writing by college or university professors?

• Se Weinstein v. University of Illinois, 811 F.2d 1091 (7th Cir. 1987) (Easterbrook, J.)

• Hays v. Sony, 847 F.2d 412 (7th Cir. 1998) (Posner, J.)

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.”

Lulirama v. Axcess Broadcasting (5th Cir. 1997)

• Was the advertising jingles at issue works for hire?

• Why or why not?

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)

COPYRIGHT OWNERSHIP

• Can more than one person be an “author”?

JOINT WORKS

• Is collaboration enough to establish joint authorship?

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 (CB p. 332)

• Each has equal and undivided interest in work

• Each has right to use or non-exclusively license work as so wishes

• Each can transfer own ownership interest without consent of other, but can’t transfer interest of other jt author without consent.

• Duty to account to other joint author

THOMSON v. LARSON (2d Cir. 1998)

INTENTION REQUIREMENT: JOINT

WORKS• 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, Thomson)

• According to Thomson, P trying to establish co-ownership must establish:

• 1. Each putative co-author made independently copyrightable contributions to work (collaboration not enough by itself)

• 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?

GAIMAN

• What part of the Thomson test did Judge Posner reject for comic books?

• Is his reasoning persuasive?

• What issue was left undecided in Thomson?

Aalmuhammed v. Lee (9th Cir. 20000)

• Did the court agree with Aalmuhammed’s contention that Malcolm X was a joint work? Why or why not?

Aalmuhammed v. Lee (9th Cir. 20000)

• 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. 20000)

• Did the court agree with Aalmuhammed’s contention that Malcolm X was a joint work? Why or why not?