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William Fisher, CopyrightX: Lecture 5.1, Authorship: Sole Authorship

William Fisher, CopyrightX: Lecture 5.1, Authorship: Sole Authorship

Hello. I’m Terry Fisher. This is the fifth of 12
lectures on copyright. Our topic today is authorship. We’ll be examining the
rules that determine what person or organization owns the
copyright in a particular copyrighted work. How those rules have evolved over time. And whether they make sense. As usual, I’ll be concentrating
on the law in the United States, but will also mention some issues
on which the law in other countries diverges from that in the US. Also, as usual, I’ll be
illustrating the lecture with various audiovisual materials. So it would be best if
you watch the lecture on a device with a good sized screen. One of those illustrative
materials will be a map prepared using the MindManager
software of copyright law. I’ll be showing the native
version of the map on your screen during portions of the lecture. An interactive PDF version of
the current addition of that map can be obtained through my home page. The address of which is So if you happen to encounter
this lecture any time after the spring of 2013, you
might want to go to my website to download an updated
version of the map. The concept of authorship
permeates copyright law. In general, and in the United States
in particular, at least rhetorically, the law celebrates and rewards authors,
the creators of original works. The clearest statutory manifestation of
this orientation in the United States comes in section 201 of the copyright
statute, which provides simply, “Copyright in a work protected
under this statute vests initially in the author
or authors of the work.” In most of the cases that
naturally come to mind when we think about
the copyright system, the application of this principle
will be straightforward. Some examples, the author of a novel
or a poem is the person who writes it. The author of a musical
composition is the composer. The author of a painting is
the person who paints it. The author of a sculpture is
the sculptor, and so forth. It’s very important to
differentiate the author of a work from the owner of a
particular embodiment of it. Suppose, for example, I write a letter
to a friend and then mail it to her. She owns the piece of paper on
which the letter is written. But I still own the copyright. As the owner of the physical copy
of the letter, she important rights. She can, of course, read it. She can also burn it. Or give it away. But she can’t copy it because that
would violate my exclusive right as the copyright owner
to reproduce the work. Nor may she, or anyone else,
publish without my permission a compilation of the letters I’ve
sent to her for the same reason. When applied to letters, this rule may
strike you as puzzling or misguided. Certainly, it’s hard to justify under
the dominant theory of copyright. The utilitarian argument that we
discussed in the last lecture. That theory contends
in brief, that the law should be crafted so as to stimulate the
creation and distribution of socially beneficial creative works. Copyright protection for
letters, one might argue, is not necessary to induce
people to write them. So the law in this instance seems
to impede dissemination of works without any offsetting social benefit. Viewed from another theoretical
angle, the rule may seem less odd. You’ll recall, I hope, that one
of the personhood interests that figures in the personality theory
of property in general and copyright in particular is a fundamental
human need for privacy. Perhaps the rule that accords the
copyright in a letter to its writer, rather than to its recipient,
or to no one at all, works to shield the privacy
interests of the writer. If so, however, the rule
does so only crudely. You’ll recall, I hope, that the
facts and ideas contained in a letter that I write are not shielded
by my copyright in it. Only the distinctive way in which
I’ve expressed those facts and ideas is protected. So if I’ve revealed in my letter
some intimate or embarrassing fact, the recipient is perfectly free– at
least as a matter of copyright law –to tweet about it or
shout it from the rooftop. She just can’t use or mimic my language. The upshot is that
the rule doesn’t align at all well with privacy interests. The bottom line, the copyrights
enjoyed by the authors of letters is hard to justify on the basis of
the author’s personhood interests. And sometimes, arguably, has
pernicious social consequences as when that impedes
the work of biographers. Courts are sensitive to
those troubling implications. And, as we’ll see later
in this lecture series, sometimes invoke the exceptions and
limitations built into copyright law to override or temper
the author’s rights. But the starting point of the analysis
is that an author gets a copyright. And keeps it even when a physical
embodiment, even a unique embodiment, is transferred to someone else. That principle is certainly not
limited to the context of letters. So, for example, a painter
hired to paint a portrait retains the copyright in the portrait. Even after he’s been paid. And even after he’s
delivered the painting to the person who commissioned it. Same with a photographer. Copyrights, in short, are sticky. They stay attached to the
author unless they’re formally transferred in some way. This stickiness is
important in practice. A surprisingly large percentage
of copyright disputes involve the following basic narrative. Person or Company A does work for
Person or Company B in relation to a particular project. The work is satisfactory and B pays A. Neither of the parties
notices that A’s work consists of or contains
copyrighted material. And so they don’t write a contractual
provision that deals with copyright. B later decides that A’s work could be
deployed in a second unrelated project. A demands an additional payment. B refuses. A brings a copyright
infringement suit contending that A retain the copyright
in the original work product. And B’s use of it in
the second project would abridge one of A’s exclusive rights. Typically, the exclusive
right of reproduction. Or public performance or display. Now, if A is an employee of
B, and the work that A does falls into the scope of A’s
job, then in the United States, the copyright in A’s work
product will belong to B. We’ll examine the rules governing
such employment relations in detail in the third
segment of this lecture. But often, A’s not an employee of B,
but rather, an independent contractor. In that situation, the copyright
will initially attach to A. And will stick there, giving
A a potential copyright claim. Here’s an example of
a dispute of the sort. Toyota makes, among other
things, Solera brand cars. In 2003, Toyota and
its advertising agency decided to launch a new ad campaign. For this campaign, they needed to
create digital models of their cars. Digital models, as many of you know, are
useful because they enable advertisers easily to alter the color and
accessories of a depicted car, enable consumers to manipulate those
images on websites, and so forth. In this case, the ad
agency working for Toyota hired a company named G&W to
prepare the digital models. And G&W, in turn, hired
another company called Meshwerks to prepare
so-called digital wire frames. Some of which are shown on your screen. These wireframes are images
formed by a network of lines that represent in great detail the
external dimensions of objects. In this case, cars. Wireframes are prepared partly through
an automated measurement system. And partly through manual adjustment
of those automated measurements to make the resulting set
of lines look realistic. In this instance, G&W took
Meshwerks’ wireframes, draped over them images of the lights,
body, tires, and so forth of each car. And provided the net
product to the ad agency which used them in the
advertising campaign. Meshwerks and G&W were paid the
amount specified in their contracts. And everyone, as best we
could tell, was happy. Things went awry,
however, when Toyota began using the images in another setting. Specifically, in a variety of ads
other than the television spot for which Meshwerks thought its
work was originally intended. Meshwerks asked for more money. Toyota refused. Meshwerks then brought a
copyright infringement suit contending that it owned the
copyright in the wireframes. And, therefore, that Toyota could not
reproduce them or derivatives of them in unlicensed contexts. The case was finally resolved in 2008. Five years after the original
advertising campaign. Now, the plaintiff doesn’t
always win in lawsuits like this. Sometimes B is able to avoid liability. For example, by showing
that A’s work did not fall within the zone of
copyrightable subject matter. Or that the later use of A’s material
was expressly or impliedly authorized by the terms of their original contract. Indeed, Toyota, in the
case I just summarized, eventually prevailed on
the first of those bases. But often, B loses. And, therefore, either
has to pay A an extra fee. Or cease using the work in question. Even when B prevails, resolving
the dispute typically takes years. And costs both parties a lot of
money, as it did in this case. The frequency of lawsuits
of this sort is attributable not just to the fact that such
situations are distressingly common, but also to the fact that the
moral intuitions of the parties commonly diverge. Typically the attitude
of B’s managers is that they’ve already paid A
an agreed upon and fair price. For A to demand more money now,
they see as a form of extortion. By contrast, A feels like he or
they has created a valuable work and thus deserves a share
of the revenues that are generated when that work is put to
an unexpected, but lucrative later use. Underlying this attitude are some of
the beliefs associated with the Lockean theory that we discussed
in lecture number two. Both parties, in other words,
are convinced typically that the other is behaving immorally. That’s a prescription for litigation. Controversies of this
sort can almost always be avoided by addressing
the issue up front. Companies in situations
of this sort should be watchful for commercial
relationships that will generate potentially
copyrightable works. And clearly provide in advance
who will own those works. It’s a mistake to rely
on trust, friendship, or a history of amicable
dealings to prevent disputes from arising down the road. Because, as I’ve
suggested, moral intuitions commonly diverge in such cases. This kind of anticipatory contractual
resolution of copyright issues is like the antenuptial
contracts sometimes entered into by prospective spouses. Sometimes awkward and
seemingly unnecessary when the relationship is
fresh, but extremely helpful when the relationship later unravels. So to review, the general point
illustrated by this example is that the copyright in
a work vests automatically in the author of the work. And it stays with the author unless
expressly transferred to someone else. Failure to be alert to this phenomenon
can create big and expensive problems. Up to now, we’ve been
dealing with situations in which the identity of the
author of a work is obvious. Sometimes it’s not. Here’s an example. As I’m sure you know, in
1912, the steamship Titanic– shown here just before her first and
final voyage –collided with an iceberg in the North Atlantic and sank. Most of the passengers died. Including one, Harry Elkins Widener. A Harvard graduate. The Principal library
here at Harvard was later funded by Harry’s mother
who survived the accident. And the library is named
for and dedicated to Harry. The ocean where the accident
occurred is over 12,000 feet deep. As a result, for 60 years, no one knew
exactly where the wreck of the Titanic lay. And certainly no one saw it. Then in 1985, a joint US and
French expedition found the wreck. Subsequently, several other expeditions
were organized to photograph and film it. One of which produced this photo. One of those filming
ventures was organized by a consortium that included a company
called RMS Titanic, Incorporated, which technically was the salvor
in possession of the wreck. That consortium– we’ll call it RMST
for short –entered into an arrangement with a filmmaker named
Alexander Lindsay. Lindsay had previously done a
British documentary on the Titanic. And he now agreed to do
another one for RMST. Unfortunately, for all
concerned, the parties failed adequately to capture the
terms of their deal in a contract. Thus, planting the seeds
for a subsequent dispute. Lindsay spent a lot of time
and effort preparing for and overseeing the making of the film. He was pretty closely involved
in the filmmaking process. But here’s the crucial fact, Lindsay
did not himself do the actual filming. Instead, he scripted and supervised
the filming of the underwater footage. More specifically,
Lindsay claimed that he created storyboards which identified
specific camera angles and shooting sequences. Designed and personally constructed
the underwater light towers that were used to illuminate the wreck. Provided the photographers
who actually did the filming with detailed
instructions for positioning and utilizing those light towers. Directed the filming from onboard
the salvage vessel, Ocean Voyager. Screened the footage at the end of the
day to ensure that he had the images he wanted. And, in general, supervised all aspects
of the preparation of the footage. Lindsay contended that he
was never paid for his work. Or at least not adequately paid. In an effort to secure
appropriate compensation, he brought suit against
RMST asserting– and here’s the rub –that he was the author
of the underwater footage, and therefore, owned the
copyright [INAUDIBLE]. The defendants, RMST, objected. Pointing out that Lindsay
did not operate the cameras. As a result, RMST argued Lindsay
could not claim the status of author. In the end, the court
sided with Lindsay. If the facts were as he had
claimed, the court ruled, Lindsay should be deemed the author. Here’s the language the court used. All else being equal,
where a plaintiff alleges that he exercised such a high degree
of control over a film operation, including the type
and amount of lighting used, the specific camera
angles to be employed, and other detail intensive
artistic elements of a film, such that the final product duplicates
his conceptions and visions of what the film should look
like, the plaintiff may be said to be an author within
the meaning of the Copyright Act. The principle that underlies
this passage is important. To qualify as an author, it’s
neither necessary, nor sufficient that you have your hands on the
instruments that create the work. If you direct the behavior of
others sufficiently closely, that it’s your ideas that are being
transposed into tangible form, then you, and not they, are the author. And thus, it is you, and not
they, that acquire the copyright. This concludes our analysis of
the topic of sole authorship. In the next segment of the lecture,
we’ll take up joint authorship.

3 comments on “William Fisher, CopyrightX: Lecture 5.1, Authorship: Sole Authorship

  1. Thank you, Professor Fisher! Learning not only to understand Copyright Law, but also how to teach Civil Law in Brazil through Your lectures.

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