13 October 2003

What is an author? A name by any other legal definition…

The Copyright Act is remarkably obtuse in defining terms. For example, "published" is defined only as to phonorecordings, despite being used 117 times in other contexts. Most critical definitions are in § 101 of the Copyright Act; good writing practices would put all definitions in one place, except those few definitions that are unique to a subsection. Good writing practices being far more than we can reasonably expect from our elected representatives, we are stuck with trying to define "author" by negative inference. At various places in § 101, we find these definitions (all boldface emphasis added):

A "joint work" is a work prepared by two or more authors with the intention that their contributions be merged into inseparable or interdependent parts of a unitary whole.

A work is "fixed" in a tangible medium of expression when its embodiment in a copy or phonorecord, by or under the authority of the author, is sufficiently permanent or stable to permit it to be perceived, reproduced, or otherwise communicated for a period of more than transitory duration.

An "anonymous work" is a work on the copies or phonorecords of which no natural person is identified as author.

A "compilation" is a work formed by the collection and assembling of preexisting materials or of data that are selected, coordinated, or arranged in such a way that the resulting work as a whole constitutes an original work of authorship. The term "compilation" includes collective works.

A "pseudonymous work" is a work on the copies or phonorecords of which the author is identified under a fictitious name.

[A] work is a "United States work" only if…
in the case of an unpublished work, all the authors of the work are nationals, domiciliaries, or habitual residents of the United States, or, in the case of an unpublished audiovisual work, all the authors are legal entities with headquarters in the United States

The author's ''widow'' or ''widower'' is the author's surviving spouse under the law of the author's domicile at the time of his or her death, whether or not the spouse has later remarried.

Most, and arguably all, of these imply that an "author" is what the law calls a "natural person"—that is, not a business organization, which I suppose makes corporations "unnatural persons" (which certainly fits with the Latin origin of the word). Of course, there is a significant exception; an exception perhaps so significant in terms of actual creation of copyrightable works that it may swallow the whole. Those familiar with the Act and its Byzantine structure (however unfair that comparison may be to the government of Byzantium) will note that I have omitted one critical definition from this list. My excuse is that it does not use the word "author" in it. (Really pathetic what I will try to create suspense, isn't it?)