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
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
-- 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