30 August 2004

The Critical Response

I suppose that now is the time for the promised criticism of the Second Circuit's opinion in Graham. Unfortunately, the opinion misses two serious issues that should have been raised, at least by amici.

The first involves one of my favorite targets in copyright law: the work-for-hire (WFH) doctrine. Although Judge Newman, as quoted in the previous entry, believes that this is a matter of statutory interpretation, the facts of this case only clarify a constitutional flaw in the doctrine. The IP clause requires that "Authors" be given the right to a limited-term monopoly on their creations "to promote the Progress" of the arts—that is, to create more art. The WFH doctrine elides this by redefining "author" to be someone other than the author: instead, under WFH, the "author" is the patron (and don't kid yourselves—that's exactly what this is). That, though, calls into question Congress's power to define a term found in the Constitution, and particularly to redefine it in a manner not consistent with either a contemporary-to-the-Founders or a contemporary-to-us understanding of the term. The facts in Graham show this clearly: Regardless of the formalisms, the Graham Center was an alter ego of Martha Graham adopted solely for the purpose of limiting her liability. Further, as the court noted, Graham would undoubtedly have continued to create works with or without her "employment relationship" that is so fundamental to the finding of WFH. To say the least, this is a curious result under an IP Clause that at least on its face attempts to negate the patronage system.

The second issue is partly hidden by the procedural posture of the case. I purposely kept referring to "heir" in the previous entry, and the Court of Appeals only briefly describes the individual in question's relationship to Martha Graham. It's not one of blood; instead, he is the heir designated in her will. The case is silent concerning whether any of the persons who might obtain either renewal rights or termination/revocation rights as specified in the Copyright Act exist, either now at Graham's death. Instead, the opinion just assumes that the will was sufficient to pass all such rights (admittedly, the case doesn't deal with termination/revocation rights under §§ 203 and 304(c), but the language parallels that for the renewal rights). This marks, by my count, the fourth punt in the last few years by the Second Circuit; and anyone who claims that the answer is clear from either the statute or from precedent hasn't read either. Of course, none of the other circuits have reached the issue, either, although I count only three punts outside the Second Circuit this century. The Court should have reached this issue in this particular case, because declaring the rights of a WFH employer must also be balanced against defining who is the party with standing to oppose such a declaration. If the heir did not, despite the will, obtain the renewal rights, then the entire matter fails for want of standing.

So, then, in reality all the Court did was divide seventy-one angels among several pins, without ever paying attention to what those pins are sticking into.