The previous segment of this lecture examined the rules that determine which among competing claimants is the author of a copyrighted work. But occasionally, more than one person can claim to have contributed enough to a work to be called an author and thus, to share in the copyright. The legal condition that arises under such circumstances is known as joint authorship.
It doesn't happen very often, for reasons we'll discuss in a minute. But when it occurs, it has some important effects. Each author in such cases is said to be an owner of the whole work, not just the part he or she contributed.
Each is free to use the work or to license others to use it. If one of the joint authors licenses it unilaterally and collects license fees, he or she must give the other joint author or authors appropriate shares. If he fails to do so, he's subject to a suit for accounting.
How much of the revenue does he have to give the other joint authors? The presumption is that each one is entitled to an equal share. This is true even if their contributions have clearly been unequal in amount.
However, this presumption of equality can be overridden by an agreement among the joint authors. When a joint author dies, his or her interest passes to his or her heirs, not to the other joint authors. In this respect, joint authorship, in copyright law, works like a tenancy in common and real property law, not like a joint tenancy.
The main difference between those two legal forms is that the latter carries with it a right of survivorship while the former doesn't. In sum, joint authorship has many important legal implications. So when and how does this situation arise?
The answer with respect to US law is that a person claiming to be a joint author has to show both of two things. First, he must show that each of the people, including himself, that he asserts share in the copyright made a copyrightable contribution to the final work at issue. Second, he must show that all of these contributors intended that their various contributions be merged into a unitary whole.
These requirements are usually construed quite strictly by the courts. The net result is that most people who seek the status of joint author fail. Here's a case that illustrates the impediments that the law places in the path of those who would be joint authors.
Rent is one of the most famous and successful musicals of all time. It was set in and first performed in New York City, but productions of the play have since been staged throughout the world. Here, for example, is a poster from a production in Oregon and one from Jakarta.
My daughters used to sing most of the songs from the play when riding in the backseat of my car. The plot of Rent is loosely based on Puccini's opera La Boheme, which has long been out of copyright. It's based on Puccini's work in much the same rough way that West Side Story is based on Shakespeare's Romeo and Juliet.
Set during a period when AIDS was often fatal, Rent examines the intertwined lives of a group of young, poor artists and musicians, many of them living with the disease. The genesis of the musical is complicated and those complications are the source of the copyright dispute that concerns us here. The narrative is traced in the slide you see on the screen.
In 1989, Billy Aronson and composer Jonathan Larson began to collaborate on an adaptation of La Boheme. In 1991, Aronson withdrew from the collaboration. They settled their respective rights in the inchoate script amicably, and Larson carried on with the project by himself.
In 1992 and 1993, James Nicola, who was then artistic director of the New York Theater Workshop-- a small, nonprofit theater in the East Village-- expressed enthusiasm about the script, but Nicola urged Larson to permit the theater workshop to hire a playwright or a book writer who would help Larson improve the story line and the narrative structure of the play. Larson refused, insisting that he wanted to do it himself. In 1994, Larson got a grant to put on a short run of shows.
Nicola agreed to produce them at the theater workshop and Michael Greif directed them. The reviews of this initial trial production of Rent were positive, but everyone agreed that the play still needed lots of work. Nicola again pressed Larson to accept some help.
And finally in May of 1995, Larson acquiesced. The theater workshop, not Larson, hired Lynn Thomson-- a professor of advanced play writing at New York University-- to serve as a dramaturg. A dramaturg is someone who assists in some way in the production and development of plays.
The contract between the theater workshop and Thomson indicated that she would receive a fee of $2,000 in return for, quote, "providing dramaturgical assistance and research to the playwright and director," close quote. In the summer and fall of 1995, Thomson and Larson worked closely together. Thomson came to Larson's apartment where they worked feverishly to revise the script.
Typically, Larson sat at the computer typing revisions while Thomson made suggestions. Many of the adjustments and particular lines that she came up with found their way into the final script. This collaboration was highly successful, at least gauging by the final outcome.
The new script was thought to entail a, quote, "radical transformation of the show," close quote, and was widely celebrated. The final dress rehearsal was held on January 24, 1996. Tragically, Larson died that evening of an aortic aneurysm.
The legal effect of this catastrophe is that his property, including whatever copyright interests he had acquired by that point, passed to his heirs. Thereafter, Nicola, Greif and Thomson worked together to tune the script. The off-Broadway production was highly praised and it soon moved to Broadway.
And the rest is history. As the play became ever more commercially successful, Thomson became ever more unhappy with her paltry compensation and with the absence of any credit she received on the title page of the production. The Broadway producers agreed to pay her an additional $10,000, but she was still not satisfied.
She asked Larson's heirs for a share of the author's royalties. Those royalties were originally payable to Larson and were now flowing to the heirs. The heirs offered her 1% as what they described as a gift-- not enough for Thomson, and negotiations collapsed.
Finally, Thomson brought a copyright infringement suit against the heirs. Her principal legal claim was that her contributions to the play were sufficient to render her a joint author. As such, she was entitled to a share of the author's royalties.
She lost at trial and again on appeal. Why? It would seem from this narrative that she had contributed nontrivial amounts of material to the content of the play and thus deserved a fair amount of credit for its success.
Nevertheless in the court's judgment, she had failed to demonstrate the two conditions that are essential to joint authorship. As mentioned previously, those two conditions are first, that each of the putative co-authors have made independently copyrightable contributions to the final work; and second, that both intended that their contributions be merged into inseparable or interdependent parts of a unitary whole. The trial court and the Court of Appeals found, or were willing to assume, that the first requirement had been satisfied.
Specifically, the trial judge found that, quote, "There are lines in Rent that originated verbatim with Ms. Thomson. I don't think they amount to 9%, and certainly not 0%.
There's probably enough there that it is not de minimis" close quote. It was the second requirement the tripped Thomson up. The way that the Court of Appeals construed that second requirement was critical.
Two or more contributors constitute joint authors only if they all, quote, "fully intended to be co-authors. " In other words, entertain in their minds the concept of the joint authors. If any one of them did not have that intention when the work was created, a joint authorship does not emerge.
Applying this standard, the courts tried to ascertain what had been the intention of Larson and Thomson. Thomson's intentions were clear enough. She wanted to be a joint author.
But she had to show that Larson also had that in mind. This created an obvious problem. Larson was dead.
So ascertaining his state of mind would have been difficult. More generally, letting the legal outcome in such cases turn on the entirely private subjective intention of one of the parties seems at best an awkward way of resolving the disagreement, because it would enable one contributor-- by harboring a secret plan not to create a joint authorship-- to defeat the expectations of the others. To address both of these concerns, the court looked for objective manifestations of Larson's state of mind made before his death.
Those manifestations, it concluded, all suggested that Larson did not want to be a co-author. For example, he exercised a veto. In other words, he had final authority over what lines went into the script.
Another indicator was that the playbill, over which Larson had control, described Larson himself as the author/composer and referred to Thomson only as a dramaturg. When Larson entered into contracts with the theater workshop, he referred to himself as the author, and so forth. These objective manifestations of Larson's state of mind were inconsistent, said the courts, with an intention to share authorship and thus, fatal to Thomson's claim.
The approach adopted by the Court of Appeals in the Rent case-- which is now the authoritative interpretation of joint authorship in the highly influential Second Circuit-- makes it very difficult for a contributor to a collective work to qualify as a joint author. The reason is that no matter how much he contributed, his claims can be defeated if any one of the other contributors did not want to share authorship and made that desire manifest in some way. To be sure, if all of the contributors to a venture not only put independently copyrightable creations into the pot, but also think about the legal status they want to assume, decide to become joint authors and say as much, then they become joint authors.
But if anyone opts out, joint authorship does not ensue. Not all US courts handled this issue in exactly the same way. In particular, the approach adopted by the equally influential Court of Appeals for the Ninth Circuit is somewhat different in emphasis, but the net effect of the Ninth Circuit's approach is equally unfavorable to persons who seek joint authorship.
Before considering possible explanations for this hostility, I need to finish the story of Rent. In the end, Thomson was not left entirely in the cold. In a coda to its opinion, the Court of Appeals suggested that even though she failed to qualify as a joint author, she might conceivably be able to assert an independent copyright in the individual lines she had contributed to the script.
If so, the play could not be publicly performed without either securing her permission or purging the script of those lines. Thomson had not raised this theory at trial, and so the Court of Appeals could not resolve it. But the Court of Appeals implied that she might initiate a second lawsuit on this entirely different basis.
She of course did so, whereupon Larson's heirs-- weary of this multi-year fight-- settled the case. So in the end, Thomson got some money-- how much remained confidential. And perhaps equally important to her, she received credit, not as an author, to be sure, but as a dramaturg on the title page of the playbill, which she had not had previously.
But the outcome of this particular story is not our main concern here. The key issue for our purposes is the very high bar that the courts have set for parties interested in joint authorship. So why is the law so hostile to the creation of joint authorship arrangements?
One possible explanation is that they are messy in the sense that they can give rise to a confusing pattern of entitlements that are costly to unravel. For example, what if one joint author grants to a licensee an exclusive right to exploit the work in a particular way or in a particular region? The example that Melville Nimmer gives is an exclusive license to show a film in a particular city.
Then another joint author grants an inconsistent, also ostensibly exclusive, license to a different licensee to show the same film in the same city. Who has what rights? In the 2008 Sybersound case, which involved a more idiosyncratic set of facts, the Court of Appeals for the Ninth Circuit ruled that the first licensee does not have standing to assert its supposed exclusivity because allowing it to do so would, in effect, curtail the privilege of the second, third, and fourth joint authors.
That reasoning may have some logical appeal, but it creates a host of practical problems. The general point is that joint authorship, by fragmenting ownership of a copyright, can create messy and hard to predict patterns of legal rights. It's better, many economists argue, to keep the legal rights over any given resource-- in this case, a copyright-- consolidated in a single person or legal entity.
In real property law, this attitude underlies impediments to the creation of long-lasting servitudes, meaning promises to use or not use land in a particular way-- promises that will bind not only the current possessor of the land at issue, but also his or her successors. In copyright law, the same attitude might account for the impediments the law creates to the formation of joint authorships. A quite different explanation emphasizes not the imperative of economic efficiency, but the history of the culture and ideology out of which copyright law has emerged.
This is an argument has been developed most richly by three historians and copyright scholars-- Martha Woodmansee, Jaime Boyle, and Peter Jaszi. Those scholars point out that copyright law emerged at approximately the same time that the movement or ideology commonly known as Romanticism took root first in European culture and then in the culture of many other countries, including the United States. The scholars contend that there's a causal connection between these two developments-- in other words, that copyright law was powered and shaped, at least in part, by Romanticism.
One of many ways in which copyright law bears the mark of Romanticism is that the law, like Romanticism, celebrates individual artists and is skeptical of collaboration. This argument, if well-founded, has implications that reach far beyond the rules governing joint authorship, so I'll describe it in a bit more detail. Woodmansee, Boyle, and Jaszi contend that until the late 18th century in Europe, writing was often, in practice, done collectively and neither popular nor elite culture placed a high value on the individual artist or author, nor was innovation especially prized.
Rather, from the Middle Ages through the Renaissance, quote, "Writing derived its value and authority from its affiliation with the text that preceded it-- its derivation rather than deviation from prior texts," close quote. As an example of this Romantic orientation, Woodmansee points to the career of Samuel Johnson. Johnson, she observes, often collaborated with other writers, spent much of his time preparing editions of other writers' works, was not much interested in claiming credit for the ideas he provided to other writers, and often took material from other writers without attribution.
Beginning in the mid 18th century in both England and continental Europe, there was a broad cultural shift away from this set of attitudes toward one that glorified individual artistic genius. A new Romantic ideal emerged-- a person who breaks free of the past and develops an entirely new idea, or at least reworks existing material in an entirely new way. This new ideal could be found in and was popularized by the work of Edward Young, Goethe, Coleridge and above all, Wordsworth.
Here's a passage from an 1815 essay by Wordsworth that distills this new notion. "Of genius the only proof is, the act of doing well what is worthy to be done, and what was never done before. Of genius and the fine arts, the only infallible sign is the widening of the sphere of human sensibility, for the delight, honor, and benefit of human nature.
Genius is the introduction of a new element into the intellectual universe; or, if that be not allowed, it is the application of powers to objects on which they had not before been exercised or the employment of them in such a manner as to produce effects hitherto unknown. " This attitude was certainly not limited to writing. During this same period, individual genius became the ideal in almost all fields of artistic endeavour.
Closely connected to that ideal was the image of an artist or author as aloof from the grubby business of commercial and industrial life. The canonical image of the creative process became that of a solitary writer or painter alone in the garret, pouring out his soul on paper or canvas. Another closely related idea is that of art for art's sake-- disconnected from both utility and politics.
During the 19th century, this collection of attitudes-- which together form the heart of Romanticism-- was reinforced by the broader ideological current known as classical liberalism. We touched on this topic briefly in lecture number one. Among the features of 19th century classical liberalism was a tendency to think of many aspects of individual and social life in terms of dichotomies-- sets of opposed polls.
Such dichotomies included public versus private-- in other words, government versus civil society-- self versus other, facts versus values, family versus market, and-- last but not least-- art versus industry. Copyright law was taking shape during this same historical period. It should not be surprising that copyright bears the imprint of these ideas.
At the most general level, the steady expansion during the 19th century of the exclusive entitlements enjoyed by a copyright owner is attributable, at least in part, to the glorification of artists and authors central to Romanticism. But many more specific doctrines in copyright law also seem connected, these scholars argue, to the attitudes associated with Romanticism. Here's one.
You'll recall from lecture number three that the 19th century witnessed an abstraction and extension of the concept of the work to which copyright attaches. Take a novel, for example. As late as the 1850s, the protection enjoyed by a novel was limited to its text-- the sequence of words in which was originally captured.
This attitude underlay a judicial ruling that a German translation of Uncle Tom's Cabin did not infringe Harriet Beecher Stowe's copyright because generated an entirely different text. As Oren Bracha has shown, by the end of the 19th century, the thing to which copyright attached was understood much more broadly. Here's a quote from his work.
"At the dawn of the 20th century, copyright's doctrinal terrain came much closer to the theoretical notion of protecting an abstracted intellectual essence, irrespective of the many concrete forms that it could take," close quote. This shift echoes, at least loosely, the transition from the idea of writer as craftsman to the Romantic idea of writer as genius. A more intriguing possible manifestation of the attitudes associated with Romanticism concerns the longstanding trouble that copyright law experienced when trying to make sense of industrial design.
As we saw-- again, in lecture number three-- at least in the United States, the relevant rule is that a useful article enjoys copyright protection only if-- and only to the extent that-- its aesthetic dimensions are separable from its functional dimensions. That doctrine of conceptual separability is notoriously difficult to apply. Keith Aoki, a brilliant copyright scholar who tragically died prematurely, suggested that the roots of that fraught doctrine lie in the dichotomy between art and industry that is characteristic of Romanticism and was reinforced by classical liberalism.
We return, finally, to the topic of this lecture segment. The possible connection between the rules governing joint authorship and Romanticism is probably by now obvious. Romanticism celebrates the individual artistic genius.
It would not be surprising that the legislators and judges who in the 19th and earliest 20th centuries shaped copyright law should seek to confer the status and economic privileges of authorship upon a single person and should be reluctant to acknowledge the degree to which authors frequently depend not just upon assistants who execute their orders-- as in the Titanic case-- but more importantly, upon collaborators who contribute meaningfully to the content of their works and thus, arguably, deserve some share of the credit and the associated legal recognition. This contention-- as I say, pioneered by Woodmansee, Boyle, and Yazsi-- that copyright laws in Europe and the United States has been influenced in part by Romanticism is lent credence by the contrasts between the cultural and legal traditions in those countries and the cultural and legal tradition in China. This contrast has been explored most provocatively by my colleague Bill Alford-- an expert on China and its intellectual property laws, in particular.
Alford's great book-- entitled, ironically, To Steal a Book Is an Elegant Offense-- contends, among other things, that China's resistance to the adoption of Western copyright law is attributable in part to the absence of a Romantic tradition in Chinese culture. While culture in Europe and the United States was being reshaped by Romanticism, China, Alford argues, remains steeped in the Confucian tradition. Confucianism included, among many other things, a radically different conception of art and creativity.
Here's a passage from Alford's book, summarizing this Confucian conception. "The power of the past and its consequences for possession of the fruits of intellectual endeavour are well captured in the passage in the Analects in which Confucius indicates, quote, 'The master--'" in other words, Confucius himself-- "'said "I transmit rather than create. I believe in and love the ancients,"' close quote.
The essence of human understanding had long since been discerned by those had gone before and in particular by the sage rulers collectively referred to as the ancients, who lived in a distant, idealized golden age. To avail themselves of the understanding, in order to guide their own behavior, subsequent generations had to interact with the past in a sufficiently thorough manner so as to be able to transmit it. Yet, as Confucius demonstrated in undertaking to edit the classics and to comment on them in the Analects, transmission-- far from being a passive endeavor-- entailed selection and adaptation if it was to be meaningful to oneself, one's contemporaries, and one's successors.
The sense of the past's compelling pertinence, and of intellectual endeavour as the medium through which interaction with and transmission of it was possible, permeated virtually all facets of Chinese civilization. As the noted scholar of Chinese literature, Stephen Owen, has observed, 'In the Chinese literary tradition, the experience of the past roughly corresponds to and carries the same force as the attention to meaning or truth in the Western tradition. ' Thus in classical Chinese literature, the past survives and warrants consideration not merely as an obvious foil for contemporary activity, but more important, because, quote, 'the Confucian imperative insists that in encountering the ancients, we ourselves must be changed, for we discover in the ancients not mere means, but the embodiment of values,' close quote.
" It should not be surprising that a country influenced heavily by this vision should have been reluctant to adopt a copyright system centered on the image of an individual artistic genius. And indeed, vestiges of that resistance continue in China today. The line of scholarship I've been discussing has an important critical dimension.
Thus far, I've been emphasizing its explanatory side. If these scholars are correct, the impact of Romanticism helps us understand how and why copyright law has assumed its current form. But these scholars also contend that the law as currently configured is misguided-- even perverse.
The image of author or artist as individual creative genius was rarely accurate, they argue, even during its heyday. Since the 19th century, these scholars contend, it's become ever less realistic as an account of how most copyrighted works are in fact generated. The way in which software is commonly produced, for example, bears little resemblance to the image of the painter alone in the attic.
The law, these scholars argue, clings stubbornly to an increasingly outmoded vision of creativity whose inaccuracy causes both unfairness and misaligned incentives. Not all intellectual property scholars are persuaded by this thesis. For example, Mark Lemley-- a leading intellectual property scholar now teaching at Stanford-- argues that many important features of modern copyright law cannot plausibly be traced to Romanticism and instead are best understood as efforts to advance the kind of utilitarian objectives I discussed in the previous lecture.
One such feature is the work for hire doctrine to which we'll return our attention shortly. Providing an optimal pattern of incentives for the creation and dissemination of innovations-- that, Lemley argues, is what copyright law is and should be primarily about, not celebrating individual artistic genius. This is an important debate.
It will arise in various other doctrinal contexts we'll examine later in this lecture series. By the end of the course, I hope you're in a position to make your own judgments concerning the nature and strength of the relationship between the Romantic cultural movement and copyright.
