Last Revised April 27, 1998 (formatting changes made 1/6/1999)
Joint Works
If a work is deemed "joint," each author has undivided ownership in
the work as intellectual property, and none of the authors can unilaterally
sell or license the work for use. In order to be considered "joint,"
a work must be "prepared by two or more authors with the intention that
their contributions be merged into inseparable or interdependent parts of a
unitary whole." 17
U.S.C. § 101. Courts have interpreted this to mean that all putative
joint authors must intend to make a joint work at the time of the creation of
that work. See Childress v. Taylor, 945 F.2d 500, 505-507 (2d Cir. 1991).
In order to be considered a joint work, each author's work must be
(1) independently copyrightable (for example, mere "editing" creates
a "derivative" work, not a "joint" work). See Ashton-Tate
v. Ross, 916 F.2d 516 (9th Cir. 1990) but also
(2) inseparable from the whole. (If it is separable, the work is "collective.")
For a thorough overview of the Joint Author doctrine, see Laura G. Lape, A Narrow
View of Creative Cooperation: The Current State of Joint Work Doctrine, 61 Alb.
L. Rev. 43 (1997).
(1) if it is created "by an employee in the regular scope of employment" or
(2) if it is one of 9 types of commissioned works created by an independent contractor if the parties have agreed in writing that it is a work for hire:
(a) collective work
(b) motion picture or other audiovisual work
(c) translation
(d) supplementary work
(e) compilation
(f) instructional text
(g) test
(h) answer to a test
(i) atlas
Courts have not decided whether web sites should be included in section (b) "audiovisual work." The seminal "work for hire" case, CCNV v. Reid, 490 U.S. 730 (1989), explored the meaning of the work-for-hire doctrine's first prong.
Under Reid, the designation of a work created "in the ordinary course of employment" depends on a set of factors, including: the hiring party's right to control the substance of the work; skill required to create it; source of the materials used in creation, location and hours of the labor, the duration of the relationship and right of the hiring party to assign additional work; method of payment; business of the hiring party; and employee benefits and tax treatment. Using that test, the Court in Reid decided that a sculpture commissioned by CCNV was not a "work for hire" because only one of the factors identified clearly leaned in favor of CCNV; but that the sculpture may have been a joint work between CCNV and Reid.
In an interesting exception, Professors who work full-time for universities do not sacrifice copyrights in the fruits of their research, although that research and the writings that result are done in the course of their employment at universities.
Contractual Rights
One way for an employer or web site organizer to ensure ownership of rights
is simply to require an assignment of rights by all employees and independent
contractors. This will avoid many of the "authorship-ownership" issues
discussed above. In order to be effective, language of assignment of copyright
rights must be in all employee and outside contractor contracts. To fulfill
the requirements for an assignment under the Act, the assignment must in writing
and signed by the party making the assignment. It is permissible to provide
that a commissioned work is both a "work for hire" and also to assign
the rights in the same document.