Comments on: Follow Up to Authorship Discussion

By: kimberlyharchuck

kimberlyharchuck — Tue, 09 Oct 2007 18:23:24 +0000

I used this article “Copyright Issues With Freefall Photographers” to study for Entertainment Law and I will be using it again. Honestly, this article is great, it breaks everything down for you in terms that you can completely grasp; it breaks down what a work-for-hire is, it details the Reid case, and it really helps you understand the kind of elements the court looks at when determining if an employee was in fact working under the scope of their employment when the work was created. But I think my favorite part of the article is the Hi-Tech Video case (I don’t think it was in our book, but we talked about it in class). This case forces you to remember that just because you might own a work does NOT mean you necessarily own the copyright to the work. I notice many times I allow the two to go hand in hand, but that is definitely not the case, and it is something we need to make sure we pay attention to.

Kimberly Harchuck

By: canglins

canglins — Thu, 13 Sep 2007 03:08:15 +0000

Mr. Blevins argument is articulating exactly what I was trying to say in Tuesday’s class. It is clear that a joint authorship does not exist unless there is intent. I understand that, but I don’t agree with the argument Professor Randazza was making. If you are a co-author of a work, but none of your contributions end up in the final copyrighted product then there should be no joint authorship. It’s the final product that is we are ultimately protecting and I don’t buy into the argument that even an idea that is discarded ultimately changes the final product is some way. I think the intent was emphasized too much in our class discussion. This is just my opinion so for the exam I will do as I am told.

Stephanie Canglin

By: marcorandazza

marcorandazza — Wed, 12 Sep 2007 16:05:31 +0000

You are WAYYY over-thinking this subject.

The statute at section 101 defines a “joint work” as “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.”

If Goldstein is correct (as many courts have held) then the word “inseparable” has no meaning in the statute. Even the Seventh Circuit has retreated from Goldstein’s view, and is trending toward Nimmer’s view. Nimmer is still the minority view, but is more statutorily correct than Goldstein.

Here, watch:

Step 1: Is there a copyrightable work allegedly created by more than one author?
NO: End inquiry.
YES: Determine the intent of the “co-authors.”

Step 2: Was there an intent by A & B to create a joint work?
NO: There is no joint work. Only the “author” as otherwise defined is the “author.”
YES: Move on to step two.

Step 3: Did A contribute more than a de minimis amount to the completed copyrightable whole?

NO: Then A is not a co-author, B is the sole author.
YES: Then A is a co-author.

Step 3.5: Did B contribute more than a de minimis amount to the completed copyrightable whole?

NO: Then B is not a co-author, A is the sole author.
YES: Then B is a co-author.

If we accept the Goldstein theory, then both A and B will have needed to have created something that is independently copyrightable. In which case, only “interdependent” matters.

You will need to know both sides of the Nimmer/Goldstein debate, but that is all. You’re wayyyyyyyyyy over-thinking the issue, which is terribly simple.

Goldstein thinks that one word in the Act is meaningless.
Nimmer gives meaning to both words.

The Seventh Circuit used to follow Goldstein.
The Seventh Circuit (Posner no less) now follows Nimmer, without explicitly saying so.

By: los1

los1 — Tue, 11 Sep 2007 18:53:11 +0000

I read this article during entertainment law and when i read it this time I was interested to see if my opinion would change about the works for hire doctrine. But no such luck… I still think it sucks… But what I can say is that I am now better equipped to articulate why I think it sucks… and why I think it is just American history being played out in the Copyright playing field.

While the Copyright Act tells us that under the idea of works for hire, the employer or person who commissioned the work, owns the copyright. So in a nutshell, scupltors like Reid, ocean going photographers, and Islamic consultants like Aalmuhammed get screwed out of Copyright protection no matter how much hard work they put into their creation. That is not the American way! … Or is it???

The more I thought about this, the more I have come to grips with the American spirit of the works for hire doctrine… This whole country is a work for hire…. Time travel back to the days of Amistad and Roots… Did any of the slaves get credit for building this country? No, last time I checked the white guy who “hired” them got the credit for the wealth of the south. In a more recent example, do any of Mexican migrant workers get any credit for the crops they provide all of us? No, they definatley do not, the credit taker is the company they are working for…

Yes, I know this is a stretch and these are not necessarily issues dealing with copyright, but the rational is there. Our country has a history of paying or making someone do the work and then taking the credit for it, so if the producer is paying, why shouldn’t he get the credit for the work the underwater photographer did? After all, it’s the American way…

- Carlos Gonzalez

By: blevinsj

blevinsj — Wed, 05 Sep 2007 22:17:26 +0000

What if two people decide to co-author an idea. Both parties have the intent to contribute mutually to the creation of a new idea and create a monumental idea. However, this is the only item that is created. The authors do not appreciate our copyright laws and consider fixation blasphemy. The idea could not be created without the contributions of the two co-authors but the idea, under our copyright law, is uncopyrightable. Are the two actors authors? If the work is uncopyrightable, then the actors cannot be deemed authors. The two actors never created anything under the guise of the copyright law.

Does this reasoning transfer to co-authors when the outcome is copyrightable but the contributions are not included and / or have no effect on the copyrighted work. An actor cannot copyright nothing (the grammar is for effect). If two actors decide to co-author a work but one actor’s work never is included in the material, how can he claim authorship? The actor is not requried to point to a tangible exhibit of his work but the contributions must have some toll on the work. If the work is never included and does not change the course of the work then the contribution should be considered de minimis. The work contributed nothing. Further, if the material must be considered in whole for copyright purposes, the actos has no stake in the work. If his work is not copyrightable (it was never included or was rejected) then why would he need an exclusive protective right in the work?

It seems illogical for copyrights to be more concerned with intent then with the work. The copyright law does not mention intent when a sole author decides to attempt to create original, independent work. If intent were paramount, everyone would have a copyright in their intended work. Perhaps this is way off base, but I wanted to make the argument.

By: tony5763

tony5763 — Wed, 05 Sep 2007 13:03:04 +0000

My issue is with the decision in Avtec. Employee works on a computer program that to me is clearly within the scope of employment. The program simulates satellite orbits. He writes the program on an apple computer purchased by his company at his recommendation and the company is in the business of selling this type of servcie to the government. It is undisputed that he is in Avtecs employ, but after appeal the District Court finds that Peiffer is the author of it. With this I cannot agree. this employee actually demonstrated his program at his employee evaluation. further, Peifer modifies, and improves the program, copyrights the new version, .209, and sells it to a compettitor, possibly violating trade secrets law and demonstrating through his conduct that he never really felt he had a copyrightable interent in the first version that he produced for Avtec. Here is the interesting part. Even if version 2 is his own work, which it may be since he did it on his own time, and apearantly did not use it on the job, its still a derivitive work produced without the permission of the “author of the original” of course, this is moot because of the District Courts ruling. In granting authorship rights to the original, the District Court simultaneously settled any question as to the rights of the updated version. Nevertheless, it seems to me that this issue could come up frequently where an employee produces a work for hire and later improves upon it on his own time, of his own volition and out of a desire to advance his own interest rather than his employers corporate interests.

Tony Fisichella

By: kathrynmdolan

kathrynmdolan — Wed, 05 Sep 2007 01:23:32 +0000

(Professor Randazza, please move this post if necessary, but I felt it most appropriately fit here as there is no link to any reading for today’s class.)

During class today, there was a lot of confusion regarding the Erickson case and the requirements for joint authorship. This is how I understand it to be: The most important aspect to look for in determining joint authorship is definitely intent. BOTH parties must intend for the work to be a joint authorship. The intent need not be written, but must be expressed in some manner (written, spoken, handshake, head nod, etc.). Once the intent is found to be present, the search moves on to the individual contributions.

In dissecting contributions, the case provided two tests. The Nimmer test just requires that the end result be a copyrightable work, with each contribution being “more than a word or a line.” The Goldstein test requires that each contributed portion be individually copyrightable. These two tests provide the outer limits of determining the contribution level required for joint authorship. Professor Randazza’s explanation is more of a middle ground requirement, although closer to the Nimmer test than Goldstein.

To have a joint authorship, there must exist a mutual intent to co-author a work and an individual level of contribution that is more than merely de minimis. While ideas and expressions are not separately copyrightable, they are deemed acceptable forms of contribution for purposes of joint authorship works. However, the ideas and expressions must have some form of substance.

Take for example Professor Randazza’s example of the class co-authoring a new copyright textbook. Professor Randazza pacing the room and throwing out random ideas, case names, etc. for the book would be a more than de minimis contribution and would most likely provide a high enough level of contribution to grant co-authorship. Student A reeling Professor Randazza back in from his ADD-induced tangents has probably provided a contribution worthy of co-authorship rights, for without that guidance it is quite possible the book would never be written. Student B writing the words down obviously has enough of a contribution to be considered a co-author. Student C editing the work once it is written can be considered a joint author, provided that more is done than just reading the words. Each one of these contributors has acted in some way to bring life into this work, and that is truly what is at the heart of a copyright.

For purposes of the exam remember:
Intent + more than trivial contribution = Joint/Co-Authorship

Kathryn M. Dolan
(Please let me know if this is incorrect or unclear and I’ll attempt to clarify my wayward thoughts.)

Ms. Dolan, you’ve nailed it! “Intent + more than trivial contribution = Joint/Co-Authorship”

-Prof. R.