September 10, 1998 98-R-1126
FROM: Christopher Reinhart, Research Attorney
RE: Copyright Laws and Academic Writing
You asked when copyright protection attaches, who owns the copyright, and what rights does someone contributing material to a work have in an academic setting.
As you know, the Office of Legislative Research is not authorized to give legal opinions and this report should not be considered one.
Copyright law protects “original works of authorship fixed in any tangible medium of expression . . . .” This requires a minimal level of creativity. Protection attaches to the author or authors when the work is fixed in some permanent form. The creator of the work is the “author” unless it is created as “work for hire.” “Work for hire” covers work created within the scope of an employment relationship and contract work within specific categories that is specially ordered or commissioned. In these situations, the employer or other party is automatically considered the “author” and receives the copyright protection.
It is also possible to have joint authorship of a work. If more than one person contributes material to a work intending that it will be joined together into a single work, each person will be a joint author and have an equal interest in the work as a whole. Each party must intend to be a joint author at the time of creation and contribute original expression that could stand on its own as the subject matter of copyright.
In the academic setting, the rights of a professor contributing to the work of another professor will depend on the circumstances. Writing for an academic journal is not likely to be considered “work for hire” for the university and a “work for hire” relationship probably would not exist between the professors. It is then a question of whether the requirements of joint authorship are met. This is a factual question that will depend on the relationship between the professors and the nature and amount of the contributions to the work. Contributions of research and editing are not protected by copyright laws.
It is unclear what rights belong to a person who contributes copyrightable material but cannot be considered a joint author. A plaintiff in a recent case argued that the contributor retains the exclusive rights in that specific material and could require the other party to pay a fee for its use. But, a court might then imply a license on behalf of the author to use the material based on the nature of the relationship between the two parties. If copyright law does not apply, it may be possible to make a claim based on an implied contract for services or unjust enrichment from the use of his services.
Copyright law protects “original works of authorship fixed in any tangible medium of expression . . . .” (17 U.S.C. § 102). Originality requires an independent creation of one's own skill, labor, and judgment. Novelty, ingenuity, or esthetic merit are not necessary but there must be a minimal level of creativity (Boorstyn on Copyright). Copyright law does not protect a plagiarist.
Copyright law does not protect a creation that is merely words or short phrases, titles, or slogans. It also does not protect an “idea, procedure, process, system, method of operation, concept, principle, or discovery” (17 U.S.C. § 102). But, it does protect the manner of expressing and describing any of these items. Similarly, copyright law does not protect facts and historical events but does protect an original expression of fact. Tables of information and compilations that are sufficiently creative can be protected even though the facts themselves cannot (Arica Institute, Inc. v. Palmer, 970 F.2d 1067 (2nd Cir. 1992).
Protection attaches only to material fixed in a “tangible medium of expression.” The statute defines the term broadly to provide for new technologies that may develop in the future and includes any form that can be “perceived, reproduced, or otherwise communicated” directly or with the assistance of a machine or device (17 U.S.C. § 102). The statute excludes material such as musical improvisations that are not recorded or written down and ballet choreography that is not filmed or notated.
A work that meets the criteria for copyright is protected at the moment it is fixed. When a work is prepared over a period of time, the portion of it that is fixed at any particular time is considered the work as of that time. This fixation requirement replaces publication under prior law (before the 1976 revision) as the point when protection attaches.
AUTHORS AND “WORK FOR HIRE”
The creator of the work is the “author” unless it is created as “work for hire.” “Work for hire” covers material created by someone within the scope of employment and contractual work within nine specific categories that is specially order or commissioned. In these situations, the employer or other person is automatically considered the “author.”
Work for hire is a “work prepared by an employee within the scope of his or her employment” (17 U.S.C. § 101). “[T]he employer or other person for whom the work was prepared is considered the author” and the employer owns the copyright (17 U.S.C. § 201(b)). The parties may expressly agree in a document signed by both of them that the employee will own the copyright.
A regular or formal employment relationship is not necessary. Status as an “employee” involves many factors:
1. the hiring party's right to control the manner and means by which the product is accomplished;
2. the skill required;
3. he source of the instrumentalities and tools;
4. the location of the work;
5. the duration of the relationship between the parties;
6. whether the hiring party has the right to assign additional projects to the hired party;
7. the extent of the hired party's discretion over when and how long to work;
8. the method of payment;
9. the hired party's role in hiring and paying assistants;
10. whether the work is part of the regular business of the hiring party;
11. whether the hiring party is in business;
12. the provision of employee benefits; and
13. the tax treatment of the hired party.
(Community for Creative Non-Violence v. Reid, 490 U.S. 730, 751 (1989)).
All of these factors are relevant but none of them is determinative. The Second Circuit gives greater weight to certain factors: (1) the hiring party's right to control the manner and means of creation; (2) the skill required; (3) the provision of employee benefits; (4) the tax treatment of the hired party; and (5) whether the hiring party had the right to assign additional projects to the hired party (Aymes v. Bonelli, 980 F.2d 857, 861 (2d Cir. 1992)).
Specially Ordered or Commissioned
A work may also be considered a “work for hire” if it falls into one of nine specific categories, it is specially ordered or commissioned, and there is a written and signed agreement that it will be considered “work for hire.” The nine specific categories are works that are (1) for use as contribution to a collective work, (2) part of a movie or audiovisual work, (3) translations, (4) supplementary works, (5) compilations, (6) instructional texts (such as text books), (7) tests, (8) answers for a test, or (9) atlases (17 U.S.C. § 101).
Joint authorship occurs when more than one person contributes material to a work intending that it will be joined together into “inseparable or interdependent parts of a unitary whole” (17 U.S.C. § 101). Each joint author has an equal interest in the work as a whole. This gives him the right to use or license the entire work subject to paying a share of any profits to the other joint authors.
Although the federal circuits vary on the joint authorship requirements, the Second Circuit's approach is binding in Connecticut. Under the Second Circuit's approach, parties can determine their relationship by a written agreement but in the absence of one, joint authorship requires that (1) both parties intend at the time of creation that they are to be joint authors, and (2) each contributes original expression that could stand on its own as the subject matter of copyright (Childress v. Taylor, 945 F.2d 500 (2nd Cir. 1991)). This approach seeks to strike a balance to ensure that true collaborators in the creative process are joint authors while preventing a sole author from losing exclusive ownership to a person who rendered some lesser form of assistance (Childress, at 504).
Intent is an issue of fact in a particular case. The parties must contemplate the concept of joint authorship and how the parties regarded themselves in relation to the work is important. But the parties do not have to understand the legal consequences of their relationship. This requirement of mutual intent is not entirely subjective and the courts will look at many factors including how the parties regarded themselves for billing and credit, the authority to make decisions and changes, and the right to enter into contracts (Childress, at 508). Mutual intent is especially important when one party is the dominant author (Thomson v. Larson, Docket No. 97-9085 (2nd Cir. June 19, 1998)).
The amount and type of contributions is also crucial. Collaboration alone is not sufficient and a writer must contribute material that independently can be protected under the copyright law. Someone who provides research and assistance does not contribute material that is copyrightable and will not be considered a joint author. In a comment in the Childress case, the court stated that some research assistants may on occasion contribute some expression to an author or an original selection of factual material that could be protected but this does not entitle him to be a joint author. The intent of both participants would be an issue (Childress, at 507). A contribution of significant language does not automatically entitle someone to co-author status because intent is also an issue.
The Thomson Case
A party who is not entitled to status as a joint author can protect his interests and contributions by entering into an agreement to be compensated for his work and efforts (Childress, at 509). But, it is unclear what rights a person may have if he makes a contribution of copyrightable material that is more than an editor or assistant but is not significant enough to meet the criteria of a joint author. The Second Circuit recently declined to answer this question in Thomson v. Larson (Docket No. 97-9085 (2nd Cir. June 19, 1998)). In this situation, it may be possible for a contributor to retain an interest in his specific contributions to the work if they are independently copyrightable. The contributor could then require a fee for the use of his material. But, in a situation like this, a court might find that a license to use the material was implied by the relationship between the parties.
The rights of a professor contributing to the work of another professor depend on many circumstances. The first may be the contributing professor's contract. Some types of work may be required as a condition of employment with the university. The type of work may also determine whether it is a “work for hire” within the professor's scope of employment with the university. Some commentators have stated that the “work for hire” provision is broad enough to include scholarly writing by university professors. We are not aware of any cases in the Second Circuit that have followed this opinion. The Seventh Circuit has discussed this issue and suggested that scholarly works might be distinguished from other work because they are not “prepared for the employer” (Hays v. Sony Corp. of America, 847 F.2d 412 (7th Cir. 1988)).
A written agreement between the professors might also determine ownership. “Work for hire” is another possibility but would depend on whether one professor was an employee of the other or whether there was a contract for a special commission for a work that fits one of the specific categories in the statute. An employment relationship would depend on the facts and it would seem unlikely because professors are highly skilled colleagues.
If the issue is academic writing (such as a journal article), it is not likely that those situations would apply. The rights of the parties would probably be determined by their intentions, the nature of their relationship, and the type and amount of work they contribute. Joint authorship requires that both parties intend to be joint authors and both contribute material that independently can be protected under the copyright laws. Intent could be difficult to demonstrate if one professor is in a position of power and seniority and has the expectation of being the sole author. The type and amount of contributions are also important even if intent can be shown. If the work being performed is research or editorial, the material is probably not protected by copyright law. A small contribution of material that is copyrightable will not be sufficient to entitle someone to be a joint author.
It is still undecided what rights someone has when he is not a joint author but contributes more than a minimal level of copyrightable material. The plaintiff in Thomson v. Larson suggests that the contributor retains exclusive rights in that specific material but the court did not decide this issue. She argues that there must be an express transfer of ownership and otherwise she can prevent the use of her writing. It would then be possible for the professor to contract for the use of the material and receive a fee or a share of royalties. But, in this situation, a license to use the material might be implied between the parties by the court.
In the absence of copyright protection for a professor's contributions, he may argue that he should recover the value of the labor he contributed to the work. This could be based on a claim that a contract for his services was implied or that there was unjust enrichment from the use of his labor.