[Copyright] Architectural Drawings. Etc.

Fri Apr 19 09:14:50 EDT 2024

I don’t think dominant author and control are necessarily the same thing.

Let’s say I’m a playwright and you’re a famous poet, and I ask you to write a poem to include in one scene in a play that I am writing.  I’m definitely the dominant author because I’m writing all of the play except that little part. And unless I offer something like actual joint authorship credit, or have you sign production contracts with me, or promote your participation to financial backers of the play as a joint author, or even say something like, “I’m so glad we’re writing this play together,” I am not expressing any intent to have you be a joint author.

I suppose that this means that I inherently “control” the work, but I still do not think dominant author and control are the same thing.

Jessica R. Friedman
Attorney at Law
300 East 59 Street, Ste. 2406
New York, NY 10022
Phone: 212-220-0900
Cell: 917-647-1884
E-mail: jrfriedman at litproplaw.com<mailto:jrfriedman at litproplaw.com>
URL: www.literarypropertylaw.com<http://www.literarypropertylaw.com>

[1479430908386_PastedImage]

From: Michael D. Steger <msteger at steger-law.com>
Date: Thursday, April 18, 2024 at 5:25 PM
To: Jessica R. Friedman <jrfriedman at litproplaw.com>, 'For copyright practitioners. This is not for laypersons to seek legal advice.' <copyright at oppedahl-lists.com>, cmlaw at jps.net <cmlaw at jps.net>
Subject: RE: [Copyright] Architectural Drawings. Etc.
Control and “dominant author” are not necessarily the same thing.  I am not sure we are disagreeing on more than nomenclature.

From Berman v. Johnson, 518 F.Supp.2d 791:

This argument highlights a circuit split regarding the requirements for joint authorship. Defendants cite to the Ninth Circuit's decision in Aalmuhammed v. Lee, which held that joint authorship requires a party (i) to make an independently copyrightable contribution and (ii) to establish "authorship" by demonstrating (a) control over the creation of the work, (b) "objective manifestations of a shared intent to be coauthors," and (c) audience  appeal based on each contributor's contribution. 202 F.3d 1227, 1232<https://casetext.com/case/aalmuhammed-v-lee#p1232> (9th Cir. 2000). By contrast, the Second and Seventh Circuits hold that authorship of a joint work is established merely by "establishing that each of the putative co-authors (1) made independently copyrightable contributions to the work; and (2) fully intended to be co-authors." Thompson v. Larson, 147 F.3d 195, 200<https://casetext.com/case/thomson-v-larson#p200> (2d Cir. 1998); see also Erickson v. Trinity Theater, Inc., 13 F.3d 1061, 1068-71<https://casetext.com/case/erickson-v-trinity-theatre-inc#p1068> (7th Cir. 1994).

The decision goes on to discuss how the 9th Circuit rule can be manipulated by bad actors who wrongfully exercise control.

From: Jessica R. Friedman <jrfriedman at litproplaw.com>
Sent: Thursday, April 18, 2024 5:19 PM
To: Michael D. Steger <msteger at steger-law.com>; 'For copyright practitioners. This is not for laypersons to seek legal advice.' <copyright at oppedahl-lists.com>; cmlaw at jps.net
Subject: Re: [Copyright] Architectural Drawings. Etc.

With all due respect, I think you are incorrect. In the Second Circuit, it is also a (non-statutory) requirement that the dominant author have intended that the author claiming joint authorship be a joint author. There are plenty of decisions to that effect.

Jessica R. Friedman
Attorney at Law
300 East 59 Street, Ste. 2406
New York, NY 10022
Phone: 212-220-0900
Cell: 917-647-1884
E-mail: jrfriedman at litproplaw.com<mailto:jrfriedman at litproplaw.com>
URL: www.literarypropertylaw.com<http://www.literarypropertylaw.com>

[1479430908386_PastedImage]

From: Michael D. Steger <msteger at steger-law.com<mailto:msteger at steger-law.com>>
Date: Thursday, April 18, 2024 at 5:16 PM
To: Jessica R. Friedman <jrfriedman at litproplaw.com<mailto:jrfriedman at litproplaw.com>>, 'For copyright practitioners. This is not for laypersons to seek legal advice.' <copyright at oppedahl-lists.com<mailto:copyright at oppedahl-lists.com>>, cmlaw at jps.net<mailto:cmlaw at jps.net> <cmlaw at jps.net<mailto:cmlaw at jps.net>>
Subject: RE: [Copyright] Architectural Drawings. Etc.
There is a major distinction between the 9th Circuit test, as set out in Aalmuhammed, and Thompson v. Larson (2d Circuit) and Erickson v. trinity Theater (7th Circuit).  The latter two tests look primarily to whether there was an independently copyrightable contribution and whether the parties intended that they be co-authors.  The 9th Circuit added a prong examining who had control over the work, which consistently leads to outcomes favoring studios and other well-heeled parties.  The other circuits do not focus on control.

From: Jessica R. Friedman <jrfriedman at litproplaw.com<mailto:jrfriedman at litproplaw.com>>
Sent: Thursday, April 18, 2024 5:08 PM
To: Michael D. Steger <msteger at steger-law.com<mailto:msteger at steger-law.com>>; 'For copyright practitioners. This is not for laypersons to seek legal advice.' <copyright at oppedahl-lists.com<mailto:copyright at oppedahl-lists.com>>; cmlaw at jps.net<mailto:cmlaw at jps.net>
Subject: Re: [Copyright] Architectural Drawings. Etc.

It was first used in the 9th Circuit and then picked up by the Second Circuit in Childress v. Taylor (1991).

But I wouldn’t characterize it only that way. The test also prevents someone who was never thought to be a joint author from trying to squeeze in and get credit and money that were never contemplated for them.

For example, in Childress v. Taylor, Taylor asked Childress to write a play for her, to which she contributed exactly one line, and then in a dispute over the staging of the play,  she suddenly claimed to be a joint author. In Thomson v. Larson, the dramaturg in Rent tried to claim joint authorship. Although Jonathan Larson died before the show opened, there was absolute no evidence that he had ever intended that she be a joint author. In the ensuing decades, there have been many other joint authorship cases with similar fact patterns.

Jessica R. Friedman
Attorney at Law
300 East 59 Street, Ste. 2406
New York, NY 10022
Phone: 212-220-0900
Cell: 917-647-1884
E-mail: jrfriedman at litproplaw.com<mailto:jrfriedman at litproplaw.com>
URL: www.literarypropertylaw.com<http://www.literarypropertylaw.com>

[1479430908386_PastedImage]

From: Michael D. Steger <msteger at steger-law.com<mailto:msteger at steger-law.com>>
Date: Thursday, April 18, 2024 at 4:34 PM
To: 'For copyright practitioners. This is not for laypersons to seek legal advice.' <copyright at oppedahl-lists.com<mailto:copyright at oppedahl-lists.com>>, cmlaw at jps.net<mailto:cmlaw at jps.net> <cmlaw at jps.net<mailto:cmlaw at jps.net>>
Cc: Jessica R. Friedman <jrfriedman at litproplaw.com<mailto:jrfriedman at litproplaw.com>>
Subject: RE: [Copyright] Architectural Drawings. Etc.
That depends on which Circuit you are in.  The control test is primarily a creature of the 9th Circuit, as it can let the dominant party squeeze out others who thought they were contributing to a joint work.

From: Copyright <copyright-bounces at oppedahl-lists.com<mailto:copyright-bounces at oppedahl-lists.com>> On Behalf Of Jessica R. Friedman via Copyright
Sent: Thursday, April 18, 2024 4:29 PM
To: For copyright practitioners. This is not for laypersons to seek legal advice. <copyright at oppedahl-lists.com<mailto:copyright at oppedahl-lists.com>>; cmlaw at jps.net<mailto:cmlaw at jps.net>
Cc: Jessica R. Friedman <jrfriedman at litproplaw.com<mailto:jrfriedman at litproplaw.com>>
Subject: Re: [Copyright] Architectural Drawings. Etc.

P would be a joint author only if the dominant author  -- if there is one -- intended that she be one.

Jessica R. Friedman
Attorney at Law
300 East 59 Street, Ste. 2406
New York, NY 10022
Phone: 212-220-0900
Cell: 917-647-1884
E-mail: jrfriedman at litproplaw.com<mailto:jrfriedman at litproplaw.com>
URL: www.literarypropertylaw.com<http://www.literarypropertylaw.com>

[1479430908386_PastedImage]

From: Copyright <copyright-bounces at oppedahl-lists.com<mailto:copyright-bounces at oppedahl-lists.com>> on behalf of Cumbow, Bob via Copyright <copyright at oppedahl-lists.com<mailto:copyright at oppedahl-lists.com>>
Date: Thursday, April 18, 2024 at 4:20 PM
To: cmlaw at jps.net<mailto:cmlaw at jps.net> <cmlaw at jps.net<mailto:cmlaw at jps.net>>, 'For copyright practitioners. This is not for laypersons to seek legal advice.' <copyright at oppedahl-lists.com<mailto:copyright at oppedahl-lists.com>>
Cc: Cumbow, Bob <Robert.Cumbow at millernash.com<mailto:Robert.Cumbow at millernash.com>>
Subject: Re: [Copyright] Architectural Drawings. Etc.
If no work-for-hire agreement was operative, then the team project was likely a work of joint authorship, which means that everyone who contributed copyrightable subject matter to the finished product is a full owner of the copyright in the finished work, and free to exploit the work without the permission of the other joint authors, but must share equally with the other joint owners any compensation received from exploitation of the work. This can quickly become a complicated mess, which is why people who set out to create a work “as a team” should have a clear written agreement about copyright before pen is ever set to paper.

Bob
 Cumbow
Partner
Miller Nash LLP
605 5th Ave S, Ste 900 | Seattle, WA 98104
Direct: 206.777.7468
 |
Cell: 425.443.0990
 |
Office: 206.624.8300
Email<mailto:Robert.Cumbow at millernash.com>
 |
Bio<https://www.millernash.com/professionals/robert-c-cumbow>
 |
Insights<https://www.millernash.com/firm-news>
 |
Website<https://www.millernash.com/>

Our attorneys regularly offer insights to address the challenges faced by our clients. To visit the Miller Nash industry-focused blog overview page on our updated website: please click this link<https://www.millernash.com/firm-news>.
From: cmlaw at jps.net<mailto:cmlaw at jps.net> <cmlaw at jps.net<mailto:cmlaw at jps.net>>
Sent: Thursday, April 18, 2024 1:11 PM
To: Cumbow, Bob <Robert.Cumbow at millernash.com<mailto:Robert.Cumbow at millernash.com>>; 'For copyright practitioners. This is not for laypersons to seek legal advice.' <copyright at oppedahl-lists.com<mailto:copyright at oppedahl-lists.com>>
Subject: RE: [Copyright] Architectural Drawings. Etc.

[EXTERNAL MESSAGE: This email originated from outside of the firm. Do not click links or open attachments unless you recognize the sender and know the content is safe.]

________________________________
My understanding of copyright law, “work for hire” does not apply to architectural drawings unless it was within scope of employment.  Team was comprised only of independent contractors and there was no employment relationship or other agreement among them, including as to ownership.  Joint owners are entitled to pro rata share of benefits derived by any owner.

Craig

From: Cumbow, Bob <Robert.Cumbow at millernash.com<mailto:Robert.Cumbow at millernash.com>>
Sent: Thursday, April 18, 2024 12:57 PM
To: For copyright practitioners. This is not for laypersons to seek legal advice. <copyright at oppedahl-lists.com<mailto:copyright at oppedahl-lists.com>>
Cc: cmlaw at jps.net<mailto:cmlaw at jps.net>
Subject: RE: [Copyright] Architectural Drawings. Etc.

One important question: When P created work as part of the team, was there a work-for-hire agreement, or an employment agreement containing a work-for-hire provision? If so, P does not own copyright in her contributions; but if not, P owns copyright, though she may be in a joint authorship situation with one or more other members of the team.

Bob
 Cumbow
Partner
Miller Nash LLP
605 5th Ave S, Ste 900 | Seattle, WA 98104
Direct: 206.777.7468
 |
Cell: 425.443.0990
 |
Office: 206.624.8300
Email<mailto:Robert.Cumbow at millernash.com>
 |
Bio<https://www.millernash.com/professionals/robert-c-cumbow>
 |
Insights<https://www.millernash.com/firm-news>
 |
Website<https://www.millernash.com>

Our attorneys regularly offer insights to address the challenges faced by our clients. To visit the Miller Nash industry-focused blog overview page on our updated website: please click this link<https://www.millernash.com/firm-news>.
‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑
CONFIDENTIALITY NOTICE: This email message may contain confidential or privileged information. If you have received this message by mistake, please do not review, disclose, copy, or distribute the email. Instead, please notify us immediately by replying to this message or telephoning us. Thank you.
‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑‑
From: Copyright <copyright-bounces at oppedahl-lists.com<mailto:copyright-bounces at oppedahl-lists.com>> On Behalf Of Craig McLaughlin via Copyright
Sent: Thursday, April 18, 2024 12:51 PM
To: 'for copyright practitioners' <copyright at oppedahl-lists.com<mailto:copyright at oppedahl-lists.com>>
Cc: cmlaw at jps.net<mailto:cmlaw at jps.net>
Subject: [Copyright] Architectural Drawings. Etc.

[EXTERNAL MESSAGE: This email originated from outside of the firm. Do not click links or open attachments unless you recognize the sender and know the content is safe.]

________________________________
Trying to figure out what a joint author (P) of architectural drawings can do to protect her rights.  Assume P is part of a team who supplied a proposal including architectural drawings for a new building, of which P contributed.  The team won the competition, but then several months ago P was cut out as to prize money and, of course, the much larger fees going forward to complete the project.  Registration has not been applied for or determined (a prerequisite to file an infringement claim) and such registration I understand takes 6-7 months these days after application, with more speed (not sure how much quicker?) for an $800 special processing fee.  It seems that statutory damages and fees are unavailable under copyright law (, but what of the use of the drawings going forward toward the completion of the building where construction has not yet commenced?  Can actionable infringements going forward be expected?   Theories appreciated.

Craig McLaughlin
Seal Beach, CA
-------------- next part --------------
An HTML attachment was scrubbed...
URL: <http://oppedahl-lists.com/pipermail/copyright_oppedahl-lists.com/attachments/20240419/138a13d9/attachment.htm>
-------------- next part --------------
A non-text attachment was scrubbed...
Name: image001.png
Type: image/png
Size: 8892 bytes
Desc: image001.png
URL: <http://oppedahl-lists.com/pipermail/copyright_oppedahl-lists.com/attachments/20240419/138a13d9/attachment.png>
-------------- next part --------------
A non-text attachment was scrubbed...
Name: image002.png
Type: image/png
Size: 8892 bytes
Desc: image002.png
URL: <http://oppedahl-lists.com/pipermail/copyright_oppedahl-lists.com/attachments/20240419/138a13d9/attachment-0001.png>