Joint Authorship Case Study


Charlie is a professor at a reputable New England law school with an interest in the Internet. He has secured the financial backing to create an Internet law resource center to teach classes to a global public, and he knows that some of his colleagues would want to participate in the teaching element of the center.

First, Charlie goes to a site architect, who creates a meta-design for the center, and comes up with an overall "look" for the site. Charlie and the architect agree that the architect will get a percentage of site proceeds.

The architect does not do any programming -- that task is to be taken on by a web design company. But as Charlie negotiates with the designers, the parties begin to think about legal issues. The design company is wary of the calculation methods that may be employed if they agree to a percentage payment, but feels that a lump-sum payment would not adequately reflect the uncertainties of the future technical support that it will be expected to provide. Work stops on the site.

Charlie is at a loss. He is unable to predict all of what will be needed to complete the site, but he can assume that the following events will take place before the site is completely done:
-- designers will create a site for each individual course, each of which will need individualized organizational plans
-- each area of the site will be using software, some of which will be used directly "out-of-the-box" and some of which will be customized for the site.
-- administrators will organize and oversee registration, and keep the site running
-- professors, teaching assistants, and secretaries will be writing the substantive material for the classes, and doing some design work
-- students will be adding substance in discussions and seminars.

Some of these players' roles will overlap, but Charlie does not know which ones. Some will want rights-forward contracts, specifying intellectual property ownership in addition to payment, regardless of what they produce. Some will get hourly wages, others percentages, others lump sums. It would be impossible (not to mention expensive) to identify all of the center's needs right now, hire everyone who will be involved, and negotiate their contracts all at once. Charlie could attempt to hire only those people who do not expect to know future rights and payment schemes, but that will reduce the pool of talent from which he could choose.

If Charlie does continue in piecemeal design as he has done, the question will undoubtedly arise: who owns intellectual property rights in the center's site and the courses contained therein? Current legal doctrines do not directly address Charlie's dilemma. According to current case law, official joint ownership of copyright only occurs when the creators of a work each contribute substantially to an integrated whole, and decide ahead of time that they are "joint authors." The "work for hire" doctrine attributes copyright ownership to employers only when the work is created in "the normal course of employment" or for certain commissions when the employer has control over the content. For more information on these and other doctrinal issues, and current issues in joint authorship, check out these sources