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Joint Authorship 11/3/2009 11:45:08 AM EST LaFrance on the Seventh Circuit's Approach to Joint Authorship in Copyright Law Professor of Law, William S. Boyd School of Law, University of Nevada Las Vegas
Janky v. Lake County Convention & Visitors Bureau, 576 F.3d 356 (7th Cir. Ind. 2009) presents another variation on the many scenarios that raise difficult questions of copyright authorship (and therefore ownership) in the context of collaborative works. In Janky, Cheryl Janky sought a ruling that she had a valid copyright in a song and that Henry Farag, who allegedly made a de minimis contribution to the lyrics, was not a joint owner, notwithstanding the fact that both Janky and Farag were listed on the copyright certificate of registration. The disagreement between the majority and dissent in this case illustrates the difficulty courts continue to experience in attempting to distinguish between authorial and non-authorial contributions. In this Analysis, Mary LaFrance examines Janky and discusses joint authorship claims. She writes:
The Seventh Circuit's difficulty in assessing joint authorship claims is nothing new. The leading case in this circuit is Erickson v. Trinity Theatre, Inc., 13 F.3d 1061 (7th Cir. 1994), which rejected the joint authorship claims of actors whose improvisations contributed to the development of a series of stage plays. Rather than develop its own test for joint authorship based on the statute and its legislative history, the Seventh Circuit in Erickson adopted a test that had been created by the Second Circuit just three years earlier in Childress v. Taylor, 945 F.2d 500 (2d Cir. 1991). As phrased by the Seventh Circuit, this test requires the party asserting joint authorship to establish that (1) the parties "intended to be joint authors at the time the work was created," and (2) the putative joint author's contributions to the works "were independently copyrightable." In practice, both parts of this test have proved problematic. In Erickson, for example, rather than focus on whether the collaborators intended to merge their contributions into a unitary work, the court permitted the subjective perceptions of the collaborators -- that is, whether they each perceived one another as being entitled to joint authorship status -- to dictate the outcome of the authorship dispute as to two of the plays, and found itself unable to conclusively determine the perceptions of the parties as to the third play.
In a subsequent decision, the Seventh Circuit seemed to retreat somewhat from strict adherence to the Childress version of the intent requirement. In Seshadri v. Kasraian, 130 F.3d 798 (7th Cir. 1997), a student and a professor collaborated on an article, which the professor initially submitted for publication as a co-authored piece, with the student's name listed first. After the professor withdrew the submission, the student published it under his own name. Invoking Childress, the Seventh Circuit held that the student did not infringe, because he was a joint author. The court found it significant that, in the professor's initial submission of the article, he had treated the student as the lead author. Although this approach appears superficially consistent with Childress, where the Second Circuit treated "billing" or "credit" as significant indicators of intent to share authorship status, the Seshadri court appeared to treat the authorship credit as significant not for what it indicated about the professor's intent to share authorship, but for what it indicated about the substantiality of the student's contribution: "It would be odd for a senior professor to list a graduate student's name before his own if the student had contributed nothing more to the article than the usual assistance that a research assistant provides."
Notably, however, the Janky opinion ignores Seshadri, and relies entirely on Erickson and Childress in treating Janky's initial decision to give joint authorship credit to Farag as indicating Janky's intent to share authorship rather than her perception of the substantiality of Farag's contribution.
. . . .
In Janky, both the majority and the dissent agreed that, Gaiman v. McFarlane [360 F.3d 644 (7th Cir. Wis. 2004)] notwithstanding, Farag's contribution to the song should be evaluated under the independent copyrightability standard. Nonetheless, even though there was no significant factual dispute about the substance of Farag's contribution, they were unable to agree on whether the standard had been met. This suggests that the difficulty of distinguishing abstract ideas from copyrightable expression presents a continuing problem to courts applying the independent copyrightability test.
(citations omitted)
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