Intellectual Property Law

Chapter 12 Discussion Answers

1. Janna and her sister Chelsea have been working together on a children’s book.
Janna, who lives in Miami, has written the words, and Chelsea, who lives in
Seattle, has drawn the illustrations (which constitute about 20 percent of the
book). The sisters have no written agreement regarding this work.

a. Can the two sisters be joint authors even if they are not working in the
same place? Discuss.
Yes. Joint authorship depends on the intent of the individuals.
If it was their intent that the work be a unified whole, then the
work is a joint work, even if they work at different times and
different places.

b. Would your answer be different if Janna wrote the text in 2012 and
Chelsea added the illustrations in 2016? Discuss.
Yes. In this case, Janna would own the copyright in the text,
and Chelsea would own the copyright in the derivative work
based on the text. It is the intent of the parties at the time a
work is created that controls. In this case, it appears that
Janna’s intent in 2012 was that the work consist solely of
words. Thus, the fact that Chelsea added illustrations later
does not make her a joint author. Each owns a copyright
interest in her own work.

c. Would your answer to (a) be different if Chelsea merely told Janna what
types of illustrations to include and Janna actually drew the illustrations
based on Chelsea’s comments? Discuss.
Yes. Merely giving a person instructions or suggestions does
not make one a joint author. Chelsea’s contribution (mere
suggestions) is not capable of copyright protection.

d. Assume the book was published and earned $40,000 last year. How will
this money be divided? Why?
The money will be divided equally. Even though the women
did not contribute equally, the law presumes they contributed
equally unless they provide otherwise. Because the women had
no agreement, profits will be divided in two equal portions.

e. Can Janna read from the book on Jimmy Kimmel Live, without obtaining
permission from Chelsea? Discuss.
Yes. A joint author has the right to use the work, perform it,
etc., without seeking other authors’ permission. Because each
has rights in the work, one cannot exclude another from using
the work or exercising the rights of copyright ownership
(although if profits arise, they must be shared).

f. How long will copyright in the work last?
Copyright will last until 70 years after the last survivor’s death.

2. Ford Motor Co. hired Adam Davis, a talented musician, to compose a new ad
jingle for the company. Adam was told only that the jingle should be upbeat and
should be no more than 30 seconds in length. Ford paid Adam a one-time
payment of $30,000 (and did not deduct any taxes from the payment). The parties
have no written agreement regarding the work.

a. Who owns the copyright in the work? Why?
Adam likely owns the copyright. He does not appear to be
“employed” by Ford. Ford had little voice in how the work was
done. In contrast, Adam seems to have had a great deal of
control over how the jingle would be composed. Moreover,
Ford did not pay a regularly recurring salary to Adam but
rather made a one-time payment to him and did not deduct
any taxes (as it would have for a regular, salaried employee).
Such is indicative of an independent contractor relationship
rather than an employee relationship.

b. Would your answer be different if Ford asked Carrie Ellis, who has
worked for four years in Ford’s marketing department, to compose the
jingle? Discuss.
Yes. Carrie is a regular, salaried employee of Ford who was
performing work for Ford in the course of her employment.
Under the work made for hire doctrine, Ford is thus the
“author” and owner of the copyright in the jingle.

c. Give the copyright term for any work by Adam and Carrie.
Adam’s copyright will expire 70 years after his death. The
duration of a copyright in a work made for hire (Carrie’s
work) is 95 years from publication of the work or 120 years
from creation, whichever is shorter.

3. In 1980, when Michael was 30, he sold his book and all copyright rights in the
book to Ted (by written agreement).

a. Can Michael recover his rights to the book? Discuss.
Yes. Beginning in 2016 (the 36th year after the grant), Michael
may terminate the grant made to Ted and recapture his
copyright. Michael must follow an elaborate statutory
procedure, give appropriate notice to Ted (and record the
notice with the Copyright Office), and follow specific time
“windows” to terminate the grant, but if Michael follows the
statutory scheme, he will recapture his copyright to the book.

b. Would your answer to (a) change if Michael authored the book while
employed by Ted? Discuss.
Yes. The termination rights provided by 17 U.S.C. § 203 do not
apply to works made for hire. Thus, if Michael authored the
book while employed by Ted and the work is one made for
hire, Michael cannot terminate the grant, and Ted will retain
all copyright rights in the book.

c. Assume Michael died in 2005, leaving a wife and two adult children. May
they recover Michael’s rights? Discuss.
Yes. Michael’s widow owns 50 percent of the termination rights
and each of the children owns 25 percent of the termination
rights. Termination can only be exercised by majority vote.
Thus, either the wife and one child or both children and the wife
must join together and agree on termination.

d. Assume that Ted prepared a sequel to the book. May Michael recover the
rights to this work? Discuss.
Michael could terminate the original grant, but Ted would
retain rights to the sequel, which is a derivative work. Ted
could not prepare any other derivative works based on the
sequel, but he could continue to exercise his rights in the sequel
even after the date of termination.

4. Calculate the duration of copyright for the following:

a. A song composed by Emily in 2009
The copyright will endure during Emily’s life and for 70 years
thereafter.

b. A song composed by Emily and Wyatt in 2009
The copyright in this joint work will last until 70 years after
the last surviving author’s death.

c. F. Scott Fitzgerald’s novel This Side of Paradise, published in 1920
This work is in the public domain. All works published before
1923 are now in the public domain.

d. An employee handbook prepared by Christy, an employee of IBM
This is a work made for hire and the copyright will last for 95
years from publication or 120 years from creation, whichever
is shorter.