14 July 2018

Six Copyrightable Works in Search of "the" Author

Part 0 (Introduction)

Part 1: The Simple Author/Claimant Distinction

Once upon a time…

No, I'm afraid this isn't a fairy tale. Neither is it fiction. Now, where was I?

Most Americans' knowledge of the Duke of Milan ends with the character by that name in a Shakespeare play4 (if that much, as the play has never had a very successful film or television production made from it). Ludovico Sforza, who was the Duke of Milan at the tail end of the fifteenth century, was not himself an artist. Or writer. Or inventor. Or, really, much of anything other than a mere patron of artists and individuals works of art: Sforza supported Leondardo da Vinci for years and in particular commissioned The Last Supper.

It's that last clause that's of interest here. Today, we think of The Last Supper as a painting "by" da Vinci; in our minds, there's no question about its "authorship." Who is this Sforza guy anyway, to claim authorship of a painting to which his sole contribution was approval of an idea and money? Sadly, under US copyright law as it stands, Sforza is the author… or, at minimum, the only party with standing to file as copyright claimant. This is due to the goofiness of the "work for made for hire" (usually referred to as just "work for hire") doctrine and a bit of transubstantiation worthy of a Reformation in itself. The first step is simple, and buried in the text without ever using that ugly word "patron":

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.5

The typical Renaissance commission met the predicate requirements of a work for hire, being produced by an employee. Some works (but not paintings!) may have done so when produced by what we would now call a "freelancer."

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 specially ordered or commissioned for use as a contribution to a collective work, as a part of a motion picture or other audiovisual work, as a translation, as a supplementary work, as a compilation, as an instructional text, as a test, as answer material for a test, or as an atlas, if the parties expressly agree in a written instrument signed by them that the work shall be considered a work made for hire.6

We'll return to parsing the second clause of that definition later on, because it has some fascinating implications for terminations of certain publishing contracts7 that are eligible to occur right now.

The Last Supper's attribution history exposes, or at least implicates, several dimensions of the author-claimant distinction:

(A) Temporal disjunctions, especially for better-known works. For example, almost everyone thinks of Citizen Kane as "by" Orson Welles, not as "by" RKO; conversely, only aficionados attempt to distinguish among the various Marvel Cinematic Universe films by their directors and/or screenwriters.

(B) Form disjunctions, as implicated by the second clause of the WFH definition. Why, for example, should the financial backers of a filmed audiovisual production have a greater copyright claim as a matter of law than do those of a theatrical production? How about a filmed audiovisual production of a theatrical production?8

(C) Positional disjunctions, primarily those caused by greatly unequal original positions. These may be economic or other power-related inequalities,9 but not necessarily; mere informational asymmetries, such as those present when a more-skilled artist or author collaborates in an unfamiliar field or context, can be equally distortive.10

There are lots of other disjunctions to consider — especially when we start to consider joint authorship later on — but these will do to justify a fair number of footnotes.

  1. William Shakespeare, The Tempest (FF 1623, est. prod. 1611/12). Somewhat ironically, many scholars consider this play to be the last one that Shakespeare "wrote" alone… which, given the controversy over Shakespearean authorship, made it reflexively necessary to cite to it in this piece. There is some reason to believe — but so far as I'm aware no clear documentation — that Shakespeare was at least partially aware of the patron/author relationship involving Ludovico Sforza (purportedly the "real" inspiration for the play's character) and Leonardo da Vinci.
  2. 17 U.S.C. § 201(b) (current to 2018).
  3. 17 U.S.C. § 101 def. 55 (current to 2018).
  4. See 17 U.S.C. § 304(c) (current to 2018). I will take the opportunity to snarl at the drafters of this subsection of the Copyright Act, which is both recursive and self-contradictory due to bad thinking, bad writing, bad factfinding, and conflicts of interest. It is, however, the law — even if, and perhaps especially if, it seems designed to make actually exercising the rights granted next to impossible, and the Copyright Office has historically abrogated its duty to provide appropriate guidance to do so (I have been unable to find any citation to Copyright Office guidance in any reported case regarding an attempted termination).
  5. As a preview of later discussion, these definitional quandaries result from oversimplification, on the order of declaring that every gravitational interaction is between two bodies only, and that one can always neglect the effect of every other gravity source other than the two most obvious ones. In reality, not so much — just ask anyone computing a trajectory from Earth to Mars. Essentially, this is an attempt to define away certain problems by pretending that they don't exist.
  6. Cf. generally John Rawls, A Theory of Justice (1971, rev. ed. 2005) (that this is an essentially obligatory citation does not mean that it's irrelevant). There is a long history of scholarship on unequal bargaining position in contracts that is equally relevant, perhaps epitomized in Grant Gilmore, The Death of Contract (1974).
  7. Cf., e.g., Sybille Bedford, Aldous Huxley: A Biography (rev. ed. 2002) ___ (describing Huxley's frustrations with the generally poor writing skills he encountered in Hollywood); compare (if you dare) 20th Century Fox, Star Wars (1977) (aka Star Wars Episode IV: A New Hope) with George Lucas, Star Wars (1977) (film "by" an auteur with novelization of that same film "by" the same individual).