LLM Law Outlines Intellectual Property (IP) Law Outlines
IP Law with Former Spring 2019
Based on the book Intellectual Property in the New Technological Age 2018 (Robert P. Merges)...
The following is a more accessible plain text extract of the PDF sample above, taken from our Intellectual Property (IP) Law Outlines. Due to the challenges of extracting text from PDFs, it will have odd formatting:
04. Copyright - Ownership and Duration
MML 587-607, 612-20; 17 U.S.C. §§ 101 (“joint work,” “work made for hire”), 201, 302-305
Copyrights have limited duration
A. Initial Ownership of Copyrights
§ 201(a): “Copyright in a work protected under this title vests initially in the author or authors of the work...” Authors get the copyright but who are the authors?
Individual who writes, composes, or paints an original work of authorship on her/his own acquires the copyright upon the work’s creation
Often easy to tell, except for special categories of works
Works made for hire
Joint works
Collective works
(1) Works Made for Hire
1909 Act Regime
§ 26. “the word ‘author’ shall include ‘an employer in the case of works made for hire.’
‘Work made for hire’ was not defined
Court presumed that any works created within the scope of employment/ commissioned by independent contractors vested in the employer
Work made during employment/ hired to do something copyright vests automatically in the employer
Employee: presumption that works prepared by employees within the scope of employment were works made for hire
Independent Contractor: presumption that commissioned works were made for hire
instance and expense” test
Presumption arise when mutual intent of parties is that the title to the copyright shall be in the person whose instance and expense the work is done
Rebutting Presumption:
express agreement to contrary
evidence establishing contrary intent of the parties, including:
industry custom
lack of supervision/ creative control by employer
the hiring party lacked the right to direct and supervise the manner in which the work was created
course of dealing
work not created at the instance and request of the hiring party
Works created prior to Jan 1, 1978 remain subject to this test
1976 Act Regime
§ 201. Ownership of Copyright
(b) Works Made for Hire. In the case of a work made for hire, the employer or other person for whom the work was prepared is considered the author for purposes of this title, and unless the parties have expressly agreed otherwise in a written instrument signed by them, owns all of the rights comprised in the copyright.
§ 101. A “work made for hire” is
(1) a work prepared by an employee within the scope of his or her employment; or
(2) a work falling within one of 9 enumerated categories of specifically ordered/ commissioned works + evidenced by a written agreement, signed by both parties expressly stating that the work is intended to be a ‘work made for hire’:
a contribution to a collective work
a part of a motion picture or other audiovisual works
a translation
a supplementary work
a compilation
a instructional text
a test
answer material for a test
an atlas (graphics)
Test to decide whether someone is an employee
Statutory Interpretation:
“Where Congress uses terms that have accumulated settled meaning
under . . . the common law, a court must infer, unless the statute
dictates, that Congress means to incorporate the established meaning
of these terms.” Common Law Agency Test
Main concerns
How close to conventional employment is the arrangement - salary & benefits
Who owns the means of production – tools
Who controls the action?
Exercise of creative judgment is not as important as originality cases
Rejected other possible Tests used by different Circuits – on
Right to Control most used
Actual Control most used
Common Law Agency
Formal, Salaried Employee
Court mostly relied on the first two tests, but copyright is not something physical
Community for Creative Non-Violence v. Reid (Supreme Court 1989)
Facts: CCNV entered into oral agreement with a sculptor, Reid, to produce a sculpture of homeless in America to raise funds for the homeless. Upon completion, Reid claims copyright of the statute CCNV argue it owns the copyright by virtual of ‘work made for hire’ DC held for CCNV CA reversed Supreme affirmed CA
Held for Reid: R is not an employee of CCNV but an independent contractor
General rule: Artist is the author(s) of the work s.201(a) 17 USC
Author = person who translates an idea into a fixed, tangible expression entitled to copyright protection s.102
Exception: works made for hire under s.101
(1) work prepared by an employee within the scope of his/her employment; or
(2) 1 of the 9 categories of specifically ordered/ commissioned works
Not applicable here
Issue: Whether the sculpture in issue is a work prepared by an employee within the scope of his/her employment?
4 interpretations: court: employee = common law agency meaning
Work is prepared by an employee whenever the hiring party retains the right to control the product
Court: would distort meaning of ensuing subsection 101(2)
Work is prepared by an employee when the hiring party has actually wielded control with respect to the creation of a particular work
The term employee carries its common-law agency law meaning
Court agreed with CA: employee should be understood in light of the general common law of agency
Employee only refers to formal, salaried employees
Whether a hired party is an employee under the general common law of agency
List of relevant, nonexclusive, non-determinative factors:
Skill required
Source of instrumentalities and tools
Location of the work
Duration of the relationship between the parties
Whether the hiring party has the right to assign additional projects to the hired party
Extent of the hired party’s discretion over when and ow long to work
Method of payment
Hired party’s role in hiring and paying assistants
Whether the work is part of the regular business of the hiring party
Whether the hiring party is in business
The provision of employee benefits
Tax treatment of hired party
Applying to this test, Reid was an independent contractor and not an employee, as he:
Though CCNV members directed enough of Reid’s work to ensure that he produced a sculpture that met their...
Buy the full version of these notes or essay plans and more in our Intellectual Property (IP) Law Outlines.
IP Law with Former Spring 2019
Based on the book Intellectual Property in the New Technological Age 2018 (Robert P. Merges)...
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