1. A little bit about joint authorship in copyright. Part 1 in a series. About 35 tweets, which is not enough to discuss the issues and nuances. As always, assume asterisks everywhere.
2. Joint authorship is where more than person owns the same copyrighted work.
3. Joint authors own an equal share of the work. Each joint author can market and license the work, subject to paying the others their share. The property term is that they are “tenants in common” 17 U.S.C. § 201
4. Under 17 U.S.C. § 101, a joint work is “prepared by two or more authors with the intention that their contributions be merged into separable or interdependent parts of a unitary whole.”
5. In other words, for it to be a joint work, the authors must intend for the contributions to be merged into one work.
6. Addressing whether any contributor is a joint author of a work, courts require that each contribution be independently copyrightable.
7. The “independently copyrightable” requirement would prevent an “idea” person from being a joint author.
8. For instance, If someone bounced ideas to a writer, but didn’t contribute any expression, that person might not be a joint author of a work.
9. That was one of the issues in the Friday the 13th lawsuit. The producers argued they were literally standing by the screenwriter giving him ideas. But the court held that doesn’t make them joint authors. ecf.ctd.uscourts.gov/cgi-bin/show_p…
10. A couple of well-known decisions in federal courts in New York and California courts illustrate how we determine joint authorship. The New York case is over the play Rent. The California case is over Spike Lee’s Malcolm X movie.
11. In the Rent Case, playwright Jonathan Larson hired Thomson, a “dramaturg” to help on the script. The agreements said Larson was the sole author. Thomson even worked on the script after Larson died, before its opening.
12. The 2nd Circuit relied on “objective” factors of co-authorship. That’s particularly helpful where there is a “dominant” author.
13. Here, Thomson did contribute some copyrightable material. But ultimately, the decision-making was Larson’s. Larson said the writer is “king.” He was the only one billed as the writer.
14. So all the objective evidence demonstrated that Thomson wasn’t a joint author. casemine.com/judgement/us/5…
15. In the Malcolm X case, Aalmuhammed v. Lee, Spike Lee hired Plaintiff as a “Islamic Technical Consultant”.
16. 9th Circuit articulated a standard that’s less rigid than Thomson. More subjective factors can be taken into account. In this case, however, the consultant wasn’t a joint author.
17. More recently, in the Chiluly case, the artist had assistants creating the painting in his style and technique. He Used those paintings for 3-D glass sculptures.
18. Applying 9th Circuit law, the court held assistant not a joint author: Chihuly had ultimate control, saving and discarding as he wanted. It wasn’t enough that the plaintiff made some independent artistic decisions.
19. There was no written agreement on ownership or authorship. Chihuly claimed sole authorship and displayed in his name only. Market appeal derived from Chihuly’s name and style only, not from plaintiff’s contributions. courtlistener.com/recap/gov.usco…
20. Can you, instead of being a joint author, have your own separable independent copyright contribution. That was rejected in Chihuly and Garcia v. Google, a lawsuit brought an actress in the racist “Innocence of Muslims” movie. leagle.com/decision/20047…
21. Thomson left that issue open. Ulloa, a S.D.N.Y. case brought by the woman who song the verse on Jay Z’s Izzo/HOVA, possibly leaves that issue open.
22. Even though an actor is typically not considered to be a joint author of a film, the band Smashing Pumpkins were found to be joint author of a music video. It’s an outlier and I don’t see it relied on much. law.justia.com/cases/federal/…
23. The court held “the primary purpose of his work: he was shooting a music video. The video's music was therefore the central component of the completed work.”
24. Similarly, the subject of a photograph is typically not considered to be a joint author of a photograph. There usually isn’t intent to create a unitary work. Photographers are the author.
25. A songwriter was held not to be a co-author of Trust Hurts. Lizzo didn’t credit the songwriter, who co-wrote a previous song with her. business.cch.com/ipld/Jefferson…
26. For sound recordings, the performers are on the recording are generally considered to be joint authors, although contracts do play a role.
27. That reflects the real world, where authorship and ownership are determined by written agreement.
28. In theory, however, contracts can designate but not authorship. It matters when parties litigate.
29. The language of these agreements need to be drafted with precision. Consider what happened in this dispute between the Everly Brothers over their songs.
30. Phil agreed to “transfer, release, assign and set over unto Don Everly all of his rights, interests and claim to” Cathy’s Clown, and to “transfer and release” to Don “every claim of every nature by him” of the song.
31. Court held that doesn’t necessarily mean Phil disclaimed authorship. Just credit for it.
32. The Everly Brothers case was in the 6th Circuit. I don’t know if the 2nd and 9th would’ve held the same thing about that agreement.
33. Remember that language in the Everly Brothers decision. Are we going to see ghostwriters claiming rights, even if they agreed to forgo credit?
34. Authorship will matter with termination rights. Aside from a work for hire agreement*, authorship will control who’s entitled to the rights.
35. Because litigation over termination rights is relatively new, we can expect to see joint authorship addressed more often.
36. I realized there's just too much to discuss in one Twitter thread. In Part 2, I'll talk more about how parties contract authorship and copyright ownership, and how industry norms affect outcomes.

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More from @MarkJKings

22 Feb
Here's a good article on "you stole my script" lawsuits.

It focuses on idea theft and California's "implied contract" theory that sometimes protects screenwriters making pitches. But usually doesn't.
There are ways to protect ideas by *express* contracts. That's a nondisclosure agreement. They're accepted in many industries. But Big Hollywood probably isn't going to sign yours.
Also, New York courts haven't adopted the implied contract theory for film pitches. So whether you have any chance of protection depends, in part, on where you make your pitch.
Read 4 tweets
7 Dec 20
1. A brief bit about copyright termination rights. Specifically, when can you terminate and get your copyrights back?
15 tweets.
2. We say that 35 years after you’ve assigned a copyright, you can terminate the assignment and get your copyrights back. Of course, it’s a little more complicated than that.
3. First of all, the right applies where the “execution of the grant” (the assignment) was on or after 1978. If it was before that, a different set of rules and a different time frame (56 years) applies.
Read 15 tweets
30 Nov 20
Mike, I litigate and I can confirm that Rule of Evidence 404(b) has nothing to do with the point they're trying to make.
They're relying on an exception to a rule that would otherwise prohibit certain evidence from being used against a witness. But that rule doesn't even apply to the point they are trying to make.
In a very simplified explanation for non-lawyers: Rule 404(b) says you can't use prior "bad acts" of the witness for the purpose of saying "you did bad things before, so you must have done this bad thing we're accusing you of."
Read 11 tweets
18 Nov 20
1. I’m going to talk a little bit about the Instagram copyright infringement lawsuits. That is, not lawsuits vs. Instagram, but lawsuits by photographers against other people who embed their Instagram photos. A brief thread. About 22 tweets.
2. There have been numerous copyright infringement lawsuits against websites that embed photos from Instagram, including this one:
3. Although we’ve learned a few things from court decisions, there are no clear, bright lines. We probably won’t have any unless there’s a consensus in the federal courts or the Supreme Court takes them on.
Read 22 tweets
15 Apr 20
Thoughts on Sinclair v. Ziff Davis, which held that Mashable had a third-party license from Instagram to embed plaintiff's photograph on its website. #copyright

Read carefully.
The distinction between embedding a photograph or copying and pasting it comes into play, but for different reasons than Goldman v. Breitbart.

Goldman v. Breitbart isn't the decision to compare this to. Another one is.
The issue in Sinclair is whether, by uploading her photo to Instagram and agreeing to its terms of use, she granted a license to Instagram to sublicense it, and Instagram granted a sublicense for Mashable to embed a photograph.
Read 17 tweets
15 Jul 19
1. In light of this recent suggestion, I'm going to go over some basic principles about copyright law, "master" recordings, musical works, and recording contracts.

Note: assume ever tweet below has asterisks because there are almost always complications and exceptions.
2. When we talk about control of the "masters" we really mean two different things:

The tangible, physical master recordings, from which all later copies are made - and -

The copyright in the sound recordings, or the performance of those songs.
3. When we say a record label owns the "masters", we often mean both of those things. But industry people often blur the distinction.
Read 17 tweets

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