April 22, 2015 | Category: Blog | Tags: assignment, copyright, copyright ownership, implied licenses, transfer | Comments: 0
Rick is an experienced Nashville intellectual-property litigator and an erstwhile part-time professor at Vanderbilt University Law School whose writing and teaching focuses on copyright issues but whose law practice involves a wide variety of IP-related disputes.
Implied Licenses Are a Last Resort
In the day-to-day counseling about copyright matters, this is perhaps the most common fact pattern, and it’s surprisingly sticky. Company X has hired creative firm Y to create something for it. “It” could be almost anything: computer software code, a logo design, promotional copy, a website, packaging, a photograph—anything that you might want to outsource rather than develop in house.
Normally, when you hire somebody to make you something, you own the final result. If you hire an interior designer to pick out and configure appropriate furniture for your office, you own the furniture once you buy it—and the particular configuration of furniture that your designer recommended. Not the interior designer, and not the furniture manufacturer.
Hiring (Creative) Guns
But creative works are different. By default, the copyright in a work belongs to the creator, not the commissioning party. There are only two exceptions to this. First, if the creator is your employee, and made the work in the scope of her employment, then you are the owner.
But didn’t we say that we had outsourced the work? That means our situation can’t fall in this exception, right? Not exactly. It turns out the law cares much more…
Who Owns the Copyright in Your Life Story? Nobody.
There is, in my mind, a rebuttable presumption that earnest Hollywood movies are the equivalent of eating overcooked vegetables: you only watch them because they’re good for you, and most of the vitamins have been leached out. Thus, I’ve never watched The Good Lie, an earnest Hollywood movie about the “Lost Boys of Sudan,” who have a remarkable story no matter how you tell it.
The Good Lie gets my attention because it is the subject of an ambitious and astounding lawsuit filed last week in the Northern District of Georgia, which has a fascinating, if misguided, copyright angle. You can read the lengthy (but compelling) Complaint here. The plaintiffs are dozens of Lost Boys who had been interviewed by the early producers of the movie (whom we’re just going to call the screenwriters. Everyone allegedly knew that the interviews’ purpose was to help write a script, and everyone expected a movie to eventually be produced.
The Lost Boys were savvy enough not to give their life stories away for free, but the screenwriters didn’t have a lot of money. The real money would come later, but only after the script was written,…
Four Seasons of Legal Pain
If you are of a certain age, when you’re old enough to be living on your own but young enough to be content with renting rather than owning your abode, you start to get pressure from well-meaning older folks, like your parents, that you really should be considering buying a place. It is always better to own than to rent, they say, as though that were a general rule. And, with real property, at least, it’s usually true.
With copyrights, though, sometimes you don’t want to be the owner—or, more precisely, you don’t want to be a part owner. This crazy Jersey Boys case shows why.
Jersey Boys is, as you probably know, a very successful Broadway musical about The Four Seasons, a music band that was simply huge in the 1960’s, especially the early 1960’s, before the Beatles came along. I’ve blogged about the musical, the band and Frankie Valli’s astounding falsetto before, in very special episode of Is it Fair Use?, so you can get some additional background there.
Ghostwriters Have Rights, Too!
There were, as you might guess, four members of the band. In the 1980’s, one of them, Thomas DeVito, wanted to write an autobiography.…
The Mysteries of Copyright Ownership
If there were a goldmine in your town—one that produced a worthwhile amount of gold every year and wouldn’t run out for many, many years—you’d probably expect any dispute about who owns it to have long since been resolved. It’s true that the folks who sell you real estate might not actually own it, which is why you buy “title insurance,” but real estate transactions are pretty well-recorded, so such awful surprises are pretty rare, which is why anyone would dare to offer “title insurance.” At a minimum, you wouldn’t expect two different people to be mining the gold without, you know, their coming to blows.
But this sort of thing happens with copyrights and royalty streams with surprising frequency. It can be very difficult to tell who owns a copyright. Copyrights can be sold just like real or personal property can, but you don’t need to record the sale anywhere.* True, transfers of copyright have to be in writing, but many industries that deal with copyright—I’m looking right at you, music industry—suck at keeping records.
Jamaica, where, apparently, they didn’t do paperwork in the 1960’s.
Copyright ownership vests initially in the author, or…