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A narrow view of creative cooperation: the current state of jount work doctrine.

I. Introduction

Let's start with a classic example transposed to a new setting. A contributor posts to a listserv(1) what looks like a poem, or maybe lyrics. A second subscriber adds a melody and posts the result. The first or second contributor then markets the song and makes a mint. Who owns the copyright to the song? Resolution of this question depends upon the copyright doctrine of joint works, which governs collaborative creation.(2)

Increased opportunities for collaborative efforts have developed during the tenure of the Copyright Act of 1976 in fields such as scientific research, the computer industry, and the entertainment industry.(3) In particular, interest in and use of computer-mediated collaboration has grown within the past decade.(4) Such computer-mediated collaboration includes forms such as video conferencing, desktop conferencing, and electronic mail applications. The growth of collaborative behaviors, combined with judicial restriction in the scope of the work-made-for-hire doctrine,(5) increase the significance of joint work doctrine under the Copyright Act.

This Article addresses the creation of joint works under the current Copyright Act, focusing on the courts' restrictive view of joint works. We turn then to a specific context, the Internet, to examine the impact of the use of express language reflecting intent regarding future use of transmitted material. Part II of this Article traces the history of joint work doctrine prior to the 1976 Copyright Act. Part III examines the courts' treatment of joint works under the 1976 Act. Finally, Part IV analyzes the effect of the presence and absence of express language regarding future use of matter communicated via the Internet.

II. Joint Work Doctrine Prior to the 1976 Act

The current copyright act, the Copyright Act of 1976, makes a break with prior law as to the definition of joint works in several respects. First, the 1976 Act contains the first statutory definition of a joint work, which was not defined in any prior act.(6) Secondly, the 1976 Act was intended to abandon one development of prior case law, the much criticized 1955 decision of the Second Circuit commonly known as the 12th Street Rag case.(7) Given the relative discontinuity between joint works under the 1976 Act and the prior case law, why should we devote any time to the definition of joint works before 1976? First, familiarity with prior judicial treatment of joint works aids our understanding of congressional intent in adopting the 1976 Act since prior case law was the backdrop against which Congress acted.(8) Further, there was not a complete break between the 1976 Act and prior case law. The legislative history of the 1976 Act indicates that the Act's definition of a joint work was intended to be generally consistent with case law prior to the 12th Street Rag case.(9) Finally, we may examine case law prior to the 1976 Act to search for any precursors to the limitations recently imposed by courts on the definition of a joint work in the form of requirements of 1) an independently copyrightable contribution and 2) an intent to be joint authors.(10)

It has been asserted that the doctrine of joint authorship under United States law owes its origins to Maurel v. Smith,(11) a 1915 case decided by Judge Learned Hand.(12) Learned Hand himself created that impression in Maurel by noting that he had "been able to find strangely little law regarding the rights of joint authors" and by relying on only one joint works case, an 1871 British case.(13) However, nineteenth-century judicial opinions show that courts assumed that joint authorship could be created, although their opinions did not specify how.(14) For example, nineteenth-century opinions refer to parties as joint authors or report allegations of joint authorship.(15) Thus, nineteenth-century parties were treated as joint authors by both the parties themselves and the courts.

What was missing until the early twentieth century was an attempt by the judiciary to expressly define what constituted a joint work. The 1909 Act cases used a "common design," the intent to contribute to one work, as a basis for finding joint authorship.(16) Along with common design, however, early cases discussed inseparability, that is, how well blended the contributions were in the final product, as a basis for finding joint authorship.(17) For example, Learned Hand reasoned in Maurel that the scenario and dialogue of an opera were parts of a joint work, in part because a scenario followed as much as this goes into the bone and flesh of the production."(18) Learned Hand meant that the scenario and dialogue could not be teased apart. Distinguish this use of inseparability from use of the terms "inseparable" and "indivisible" to describe the legal, rather than the artistic, result, the legal result being the melding of rights which is joint authorship.(19)

A series of 1909 Act cases addressed the question whether co-authors need have worked together and at the same time.(20) In the leading case, Edward B. Marks Music Corp. v. Jerry Vogel Music Co.,(21) Learned Hand clarified that all that is needed is intent for the contributions to be used in a single work: "[I]t makes no difference whether the authors work in concert, or even whether they know each other; it is enough that they mean their contributions to be complementary in the sense that they are to be embodied in a single work to be performed as such."(22) The Marks holding was stretched beyond what came to be considered the breaking point in 1955 in Shapiro, Bernstein & Co. v. Jerry Vogel Music Co., known as the 12th Street Rag case.(23) In that case, the Second Circuit held that the intent to contribute to a larger work can be conceived long after the first contribution has been produced, and can be conceived by someone other than the author of that contribution.(24) Note that the Marks rule is consistent with the definition of a joint work adopted in the 1976 Act, while the 12th Street Rag rule is not.(25)

The requirement imposed by courts beginning in the late 1980s, that each joint author make an independently copyrightable contribution, is not found in the 1909 Act cases.(26) However, two opinions appear late in the tenure of the 1909 Act, in which the Southern District of New York mentioned in passing, and the Second Circuit placed reliance on, the parties' failure to consider themselves joint authors in order to resist the 12th Street Rag doctrine.(27) Thus, these cases may be precursors to the requirement of an intent to be joint authors imposed by courts beginning in the late 1980s. Note that these cases are not direct precedent to the 1976 Act joint work cases, because that Act's legislative history indicated that its definition of a joint work was to be consistent with the line of cases prior to the 12th Street Rag case.(28)

In the first of these two cases, Picture Music, Inc. v. Bourne, Inc.,(29) it was only under the Second Circuit's 12th Street Rag doctrine that the song in question could be a joint work, since the assignee, Berlin, rather than the original author, conceived the intention for the second contribution to be made.(30) The Southern District of New York, unhappy with a finding of a joint work, which seemed compelled by the 12th Street Rag precedent, noted that that case had been criticized by commentators and would be overruled by what would become the 1976 Act.(31) The court then relied primarily on the insufficiency of the second contributor's contribution to find that the song was not a joint work.(32) After stating its conclusion and rationale, the court added that "[i]t was not the intention of the parties that [the second contributor] should become a joint owner of the source material or of the popular song so closely derived therefrom."(33) The court continued, in what appears to have been intended as explanation, that the second contributor did not become a co-owner of the source material because the original work was not transferred to her," nor did she become a co-owner of the final song because she had not made a "significant contribution."(34) The court's preceding reference to the parties' lack of intention to become joint owners is inexplicit at best.(35)

In Gilliam v. American Broadcasting Cos.,(36) the Second Circuit's partial reliance on the parties' lack of intent to be joint authors in order to conclude that a finding of no joint authorship was likely, is only slightly more illuminating.(37) After a very brief discussion, the court concluded that the "matter is subject to further exploration at the trial," but would not bar a preliminary injunction.(38) The Second Circuit apparently believed that the 12th Street Rag doctrine, criticism of which the court noted, was necessary for a finding that the television program at issue was a joint work.(39) In fact, joint authorship could have been found in Gilliam under Marks, since the writers had intended, at the time they wrote the script, that it would be embodied with other contributions in a single work, the television program.(40) Further, the contract provision that the script writers would "retain all rights in the script not granted in the agreement," used by the court as evidence that the parties did not consider themselves joint authors," in fact functioned much more directly as an agreement by the television producer to assign any joint authorship rights it might have, other than those specified in the agreement, to the script writers.(41) Precursors under the 1909 Act to the requirement of intent to be joint authors appear to be limited to the brief and ambiguous discussions in Picture Music and Gilliam.

The picture of the definition of a joint work as of the adoption of the 1976 Act, then, is one of a doctrine relatively recently developed, with the definition expanding beyond the tolerance of the courts and Congress, but with little in the way of precursors to the limits on joint works recently imposed by courts. Congress proceeded in 1976, in defining a joint work as "a work prepared by two or more authors with the intention that their contributions be merged into inseparable or interdependent parts of a unitary whole,"(42) to 1) explicitly reject the possibility of requiring inseparable contributions;(43) 2) reject case law permitting intent for a larger work to be formulated later and by one other than the first contributor; and 3) agree with case law permitting joint authors to work apart and at different times so long as there was intent to contribute to one work.(44) Thus, Congress struck a middle ground. We turn next to the courts' treatment of joint works under the 1976 Act.

III. Treatment of Joint Work Doctrine Under the 1976 Act

In examining cases decided under the 1976 Act, we find that courts generally show hostility to the joint work doctrine.(45) This hostility manifests itself in a variety of ways: the language in which joint work doctrine is discussed in judicial opinions; the subordination of joint work doctrine to the work-made-for-hire doctrine; conclusory findings that contributions have not properly merged; and narrow definitions of a joint work adopted by courts.

Given the courts' wariness about joint work doctrine, it is not perhaps surprising that the very tone in which courts discuss the existence of a joint work is at times inhospitable to the doctrine.(46) A striking example was the Second Circuit's decision in Childress v. Taylor,(47) in which the court affirmed a grant of summary judgment to the plaintiff, a professional writer, on the grounds that an actress was not a co-author of a play.(48) The Second Circuit justified its decision to require that each co-author make a copyrightable contribution(49) by arguing that this requirement "might serve to prevent some spurious claims by those who might otherwise try to share the fruits of the efforts of a sole author."(50) Aside from the circularity of the reasoning (it is the court's requirement which makes certain otherwise valid claims spurious), the picture drawn by the court is of a dishonest interloper trying to horn in on the hard-won product of another's labors. The court struck the same righteous tone in concluding that "[a] playwright does not so easily acquire a co-author."(51)

In addition to the language used by courts, the courts show hostility to joint work doctrine in their integration of that doctrine with work-made-for-hire doctrine. The choice made by courts to subordinate joint work doctrine to work-made-for-hire doctrine represents avoidance of joint works. Where both doctrines are implicated, courts regularly permit work-made-for-hire doctrine to take priority over joint work doctrine by considering the possibility of a joint work only after having considered and rejected the possibility of a work made for hire.(52) Consider the discussion of the District of Columbia Circuit in Community for Creative Non-Violence v. Reid,(53) a case in which the court appeared otherwise well-disposed toward joint work doctrine.(54) The court stated that had it adopted a broader interpretation of the scope of work made for hire, it would have affirmed the district court's judgment that CCNV, as employer, was the owner of the sculpture at issue as a work made for hire.(55) The court made this statement in spite of the fact that it thereupon characterized the sculpture as a "textbook example of a jointly-authored work."(56) Thus, although the sculpture looked to the court like a joint work, if the definition of a work made for hire had been satisfied, the court would have ignored the possibility of a joint work. The Second Circuit, in Childress v. Taylor, similarly made it clear that the work-made-for-hire doctrine trumps joint work doctrine.(57) Where an editor is employed by an author, the court explained, the author would own the editor's contributions under work-made-for-hire doctrine.(58) Only where the editor was not the employee of the author would a claim of joint authorship "not be defeated by the 'work made for hire' doctrine."(59) This result, the priority of work-made-for-hire doctrine over joint works, is not required by the Act, which defines both types of work, but nowhere indicates the relationship between the two.(60) The choice of courts to make work-made-for-hire doctrine trump joint work doctrine, although it may be justifiable, results in restricting the scope of joint work doctrine.(61)

Hostility to joint work doctrine is also apparent in conclusory and insupportable statements made by some courts to the effect that the parties' contributions have not, in fact, properly merged,(62) or that the parties did not intend merger.(63) For example, where a client made a "thumbnail sketch" of the desired floor plan for an architect, the Eleventh Circuit stated in MGB Homes, Inc. v. Ameron Homes, Inc.(64) that there was no evidence that it was the intent of either party for the sketch to become part of the finished plans.(65) One wonders why a client would produce such a sketch, if not to have it incorporated in the final plans, or why an architect would agree to take the job, if he had no intention of producing a plan to the client's specifications. Could the court have been failing to distinguish between any copyrightable material contained in the sketch, which would be incorporated in the final plan, and the paper the sketch was drawn on, which would not?

Most significantly, the joint work doctrine has been treated grudgingly in that some courts have defined a joint work more narrowly than required by the statutory language and its legislative history. Section 101 defines a joint work simply as "a work prepared by two or more authors with the intention that their contributions be merged into inseparable or interdependent parts of a unitary whole."(66) Thus, the statutory language requires only that each contributor intend that her contribution merge into a whole work,(67) and does not specify what the nature of that contribution must be.(68) The legislative history expands on the statutory definition by clarifying that joint authors need not work at the same time or together, but does not require, or even support, the narrower definitions adopted by some courts.(69) This judicial restriction of the joint work doctrine has been accomplished by making two adjustments to the statutory definition of a joint work. These adjustments deal respectively with the state of mind of the joint authors and with the nature of their contributions. Courts have narrowed the scope of joint work doctrine by: 1) requiring intent on the part of the creators of a work that they be joint authors and joint owners, rather than simply intent that their contributions be merged; and 2) requiring that each joint author make a copyrightable, or even more than a copyrightable, contribution.

In spite of the fact that the Copyright Act requires, in its definition of a joint work, only the creators' intent for their contributions to merge, many courts impose a stricter requirement.(70) Although such judicial opinions both state and apply a higher intent standard than that provided by [sections] 101, they frequently quote the statutory language.(71) Indeed, some courts do not appear to realize that they are departing from the express language of [sections] 101. For instance, the opinions of such courts employ in the same discussion both the standard of intent to merge, and the standard of intent to be joint authors, as if there were no difference between the two.(72) A few opinions make this deviation from the express language of the statute explicit and offer a justification for imposing a higher intent standard.(73) The justification offered is that the scope of the joint work doctrine needs to be narrowed beyond the statutory definition in order to avoid including as joint authors those to whom Congress never intended to extend that status.(74)

The stricter intent standard imposed by these courts requires that the parties have the intent to be joint authors, rather than simply the intent that their contributions merge, as required by the statutory definition. What the courts mean by the intent to be joint authors is an intent to share ownership in a work.(75) Thus, good evidence of intent for joint authorship is, according to the courts, evidence of intent for all authors to be given credit or billing as joint authors,(76) or evidence of intent that all authors' names appear as authors on a copyright registration form or be otherwise identified as copyright owners.(77) The intent to be joint authors is distinct from an intent to merge contributions. For example, a party could intend her contribution to merge with that of another party while intending that that party not be a co-owner of the completed work.(78) That the intent to be joint authors is distinct from an intent to merge contributions is further demonstrated by Judge Leval's explanation in Fisher v. Klein(79) that "there is this additional requirement of the shared intention that the contributions be merged into a unitary whole .... It is only where that dominant author intends to be sharing authorship that joint authorship will result."(80) In effect, the intent to be joint authors is intent for the legal conclusion, co-ownership, that results from a finding of intent for contributions to merge.(81)

The intent-to-be-joint-authors requirement owes its origin to a variety of sources. The leading case is perhaps the Second Circuit's 1991 decision in Childress v. Taylor,(82) in which the court found that because a playwright did not regard an actress as a joint author, even if the actress's contribution were sufficient, joint authorship would not result.(83) The Childress opinion contains a fuller and more explicit discussion of the intent-to-be-joint-authors requirement than had the few earlier cases that made the same requirement.(84) The Second Circuit stated the intent standard as "whether the putative joint authors regarded themselves as joint authors."(85) The district court in Childress had appeared to rely primarily on its finding that the actress' contributions failed to satisfy the contribution standard for joint authorship, and had not explicitly stated a requirement of intent to be joint authors, but in its recitation of the facts, had stressed that the playwright did not intend co-authorship.(86) The Second Circuit's Childress decision was antedated by the same court's decision in Weissmann v. Freeman,(87) in which the court stated an intent-to-merge requirement, but emphasized that the scientist did not intend to share credit for the work with her mentor, and concluded on this basis that "this work was not intended to be joint."(88) The Childress court relied on Weissmann, as well as on Fisher, for the proposition that intent to be joint authors is necessary.(89) The latter case was decided in 1990 by the Southern District of New York, which stated that where one creator's contribution is larger, "[i]t is only where that dominant author intends to be sharing authorship that joint authorship will result."(90) Also preceding Childress were several architecture cases, which, although they contained nothing explicit regarding intent to be joint authors, did support the view that it is the parties' expectations concerning ownership, rather than intent to merge contributions, that is significant.(91) These courts stated that in the relationship between an architect and a client, it is expected that the client will make a sketch or provide design features, the implication being that joint authorship is not expected, and therefore, does not result.(92)

Most other circuits considering the issue of the required intent for joint authorship appear to have adopted the Second Circuit's position. The Seventh Circuit, finding in 1994 in Erickson v. Trinity Theatre, Inc.(93) that actors were not the joint authors of three plays, required that the parties "have intended to be joint authors."(94) The Ninth and Eleventh Circuits have mentioned the intent for a work to be joint, but too briefly to permit any certainty as to what the courts meant.(95) By contrast, the District of Columbia Circuit, in its discussion of joint authorship in Community for Creative NonViolence v. Reid(96) in 1988, required only that the parties intend "to merge their contributions into a unitary whole."(97)

Imposition of a requirement of intent to be joint authors results at times in overly limiting findings of joint works because in some genuine collaborations, one party did not regard the other as a co-author or intend for the other to own an interest in the resulting work. For instance, this appears to have been the case in Weissmann v. Freeman, decided by the Second Circuit.(98) Due to that court's requirement of an intent for joint authorship (that is, joint ownership), evidenced by joint credit, the court found that two scientists' collaboration on a joint work over a period of five years had terminated in 1985 when one scientist made additional changes to the work and placed on that most recent version her own name alone.(99) Had the court required only the parties' intent for her latest contributions to merge with the prior contributions of both parties, that standard would have been easily satisfied, since both parties expected additional versions of the syllabus (a paper reviewing past research on a given topic to be used as a handout at a lecture) to be prepared by one or the other of them.(100) The scientists in Weissmann had been passing the syllabus back and forth for five years making changes and additions to it.(101) The circuit court's finding that the latest version was a derivative work prepared by one of the prior joint authors was made possible by its imposition of a requirement that both parties intend that they share ownership.(102) The court relied on one scientist's use of her own name alone on the syllabus in 1985 to find that she lacked the intention for the work to be joint.(103) The court thus put it in the power of one joint author to unilaterally exclude the other from that status.

Similarly, the requirement of intent for joint authorship produced an overly restrictive concept of joint works in a case dealing with collaboration between a playwright and an actress. The play at issue in Childress v. Taylor may well have constituted a sufficiently genuine collaborative product for joint work status, since both the playwright and actress intended their contributions to merge, and since the actress's contributions may have satisfied the applicable standard.(104) The Second Circuit expressly did not decide whether the actress's contributions of selection of facts, scenes, and characters to be included in the play satisfied the copyrightability standard enunciated by the court, because the playwright did not intend that the actress receive credit or co-own the play and, therefore, did not intend joint authorship.(105) Should the playwright's failure to regard the actress as a co-author deny the actress that status if, in fact, she was one?

One contributor's unilateral intent that the other not own an interest in a work should not prevent finding a joint work, assuming appropriate contributions from both and the intent to merge their contributions. If it is necessary to exclude from joint authorship status certain contributors, such as the case of typical editors,(106) who may satisfy the requirements of sufficient contribution and intent to merge, a safer basis for such exclusion would be that neither contributor intends one of them to be a joint author.

Note that where one alleged co-author is a professional, this circumstance appears to bias some courts against joint authorship.(107) Such Courts appear to assume that both parties expected that the non-professional would own no interest; they therefore conclude that the non-professional owns none. For example, where clients have provided input to architectural plans, courts have explained that it is "normal' for clients to do so, but that such contributions do not make the clients authors of the plans.(108) The implied premise in this argument appears to be that no one expects the clients to have joint ownership. Where, in fact, the client did not intend to be excluded from ownership, and where the client's contribution was sufficient and both parties intended merger, one party's professional status should not alone preclude joint authorship. An absolute bar to joint authorship does, in fact, appear to be contemplated by some courts where one contributor is a professional. For instance, the district court in Whelan Assocs., Inc. v. Jaslow Dental Lab., Inc.,(109) analogizing the client-computer programmer relationship to that between a client and an architect, concluded that the "architectural drawings are not co-authored by the owner, no matter how detailed the ideas and limitations expressed by the owner."(110)

In addition to narrowing the intent requirement for the creation of a joint work, some courts have restricted the scope of joint work doctrine beyond that provided by the Copyright Act with respect to the nature of a joint author's contribution.(111) Neither the 1976 Act nor its legislative history makes reference to the type of contribution required for joint authorship.(112) More recently, however, legislation was proposed, but not enacted, which would have inserted the word "original" into the definition of joint works, thus requiring that each joint author make an original contribution.(113) This bill was apparently intended to require that each contribution be both qualitatively copyrightable (i.e. constitute expression) and quantitatively copyrightable (i.e. contain sufficient expression to sustain a Copyright).(114) The bill, which was never reported out of committee, also required a signed writing for the creation of certain joint works, and would have amended the definition of works made for hire, as well as that of joint works.(115) Thus, Congress' abandonment of this amendment does little to clarify Congress' views regarding the nature of the contribution required from a joint author.

In the face of this vacuum left by Congress, courts have imposed various limits on the contribution necessary to qualify as a joint author. One view, attributed to Nimmer, and rejected by most courts that have considered it, is that any contribution which is more than de minimis is sufficient.(116) However, attributing this proposed standard to Professor Nimmer may be a misreading of his treatise. In the cited passage of the treatise, Nimmer appears to say that it is unclear how much is required from a joint author, but that the contribution must at least be more than de minimis.(117) Saying that any contribution which exceeds the de minimis level satisfies the requirement is very different from merely saying that a de minimis contribution is insufficient. Nonetheless, in addition to discussing the quantitative standard, Professor Nimmer expressed the view that a sufficient contribution could consist of ideas which "standing alone would not be copyrightable."(118) This position regarding the qualitative standard for a contribution to a joint work was brought to prominence by the District of Columbia's suggestion, in Community for Creative Non-Violence v. Reid, that it might be correct.(119)

In spite of the absence of any restriction explicitly stated in the statute or legislative history, most courts that have considered the nature of the necessary contribution have required that each contribution be independently copyrightable.(120) To the limited extent that the courts have attempted to supply authority supporting this requirement, they have done so by arguing that the term "author" in the Copyright Act or the Constitution implies a requirement of originality, so that each joint author's contribution must be a copyrightable work of authorship.(121) Certainly, in the case of a sole author, the requirement of originality has been supported by finding that the term "authors" in the Constitution implies satisfaction of a standard of originality.(122) On the other hand, it has been argued that a constitutional requirement of originality cannot apply to all uses of the term "author" in the Copyright Act, since the employer, as author of a work made for hire, need not have supplied any of the originality herself.(123) However, a distinction can perhaps be drawn between a joint author and an employer as author of a work made for hire, because in the latter case, the employer takes the copyright vicariously for the employee who did create a protectible work. In the case of a joint author, there is no one for whom a joint author can take the copyright vicariously, unless it be his joint author. Nonetheless, the argument that either the Constitution or the Copyright Act implies a requirement of originality for each joint author, although not illogical or unreasonable, is inconclusive.

A few courts have raised policy arguments to justify requiring a copyrightable contribution from each joint author.(124) One such policy argument is fairly persuasive, given that copyright law is intended to encourage creators to make use of others' ideas.(125) Where both an idea supplier and idea user intended the idea to be merged into the user's work, the statutory intent requirement would be met. If supplying an idea alone satisfies the contribution requirement, the idea originator might then claim joint authorship. Thus, use of others' ideas in the creation of works might subject creators to the risk of losing exclusive ownership of their works; this risk might make creators wary of using others' ideas.(126) This would run counter to a basic tenet of copyright law, that the progress of science is promoted by encouraging creators to use and build upon the ideas of others.(127)

It should be noted that the copyrightability standard for joint authorship does not by its terms appear to require much, if anything, more, quantitatively, than the more than de minimis standard.(128) The standards for copyrightability set forth by the Supreme Court in Feist Publications, Inc. v. Rural Telephone. Service Co.(129) are low.(130) Indeed, Justice O'Connor wrote for the Court that "copyright protects only those constituent elements of a work that possess more than a de minimis quantum of creativity."(131) Thus, the standard for copyright protection enunciated in Feist may be no higher, quantitatively, than the more than de minimis standard for joint authorship. The main impact of the copyrightability standard for joint works, in theory at least, is to exclude claims based upon the contribution of ideas alone.

In application, however, some courts which espouse the copyrightability standard, have in fact required more than a copyrightable contribution.(132) Requirements beyond a copyrightable contribution may in some cases be too high and result in an excessively narrow view of joint works. Such appears to have been the case in the Seventh Circuit's decision in Erickson v. Trinity Theatre, Inc. regarding "The Theatre Time Machine", a play in which the defendant theatre claimed joint authorship with a playwright based on contributions made by actors.(133) In spite of the court finding that "the evidence shows that the actors were involved in the development of the melodrama and improvisational scenes," the court concluded that the theatre had not satisfied the copyrightable contribution requirement because the actors could not identify the specific contributions which they had made.(134) Although the contributions of the actors to these scenes through the process of improvisation may well have been copyrightable, the contributions were rejected by the court because they were inseparable from the playwright's contributions.(135) Requiring a putative joint author to identify exactly which words, shades of meaning, and influences she contributed to a scene conflicts with the Copyright Act, which explicitly contemplates the possibility of inseparable contributions.(136)

A similarly questionable result was reached in Balkin v. Wilson,(137) in which the district court endorsed the copyrightability standard, but granted the plaintiffs motion for summary judgment on the issue of infringement.(138) The court granted this motion in spite of the fact that the defendant had contributed "precise technical specifications" to the songs at issue, that the parties had discussed together the 'content" of the songs before their composition, and that the plaintiff described himself as the "mechanic" of the songs and the defendant as the "architect."(139) Although the defendant did not claim to have written "a single note of the music or a single word of the lyrics," could not his contributions of technical specifications, content, and structure be copyrightable?(140) Thus, the court may well have in fact required more than a copyrightable contribution. Consider also Cabrera v. Teatro del Sesenta, Inc.,(141) in which the District of Puerto Rico found that the contributions of four collaborators to a play were not sufficient to support joint authorship because they were not "tangible."(142) The court rejected the collaborators' contributions despite the court's previous conclusion that their participation was "real, effective and crucial throughout the writing of the script,"(143) and despite the court's ultimate conclusion that its interpretation of the law "may have produced what might be considered an unfair result."(144) By "tangible," the court appears to mean contributions fixed in a tangible medium by the collaborators themselves.(145) The court thus made a requirement beyond copyrightability, by requiring that each collaborator physically fix his contribution, rather than orally communicate his contribution to another collaborator for fixation.

The courts have thus taken, under the 1976 Act, a restrictive view of joint works. A narrow view of joint works broadens the scope of infringement since joint work doctrine is so often invoked as a defense to a claim of copyright infringement. In a majority of cases in which the existence of a joint work has been litigated under the current Act, joint authorship has been raised as a defense to an infringement claim.(146) Since a joint author has the right to independently use or license the entire work, she cannot be liable to another joint author for copyright infringement of that work.(147) Joint authorship is thus a complete defense to a claim of copyright infringement. Therefore, given the fact that joint work doctrine is so often raised as a defense to infringement, a restrictive view of joint works favors finding infringement and may contribute to the over-enforcement of copyrights.(148)

IV. Intent For Future Use of Internet Communications

We turn now to further implications of the courts' restrictive view of joint works, in the limited context of serial collaborations, that is, works to which contributions are made consecutively.(149) Such serial collaborations implicate the courts' narrow view of joint works elaborated above, particularly the requirement of an intent to be joint authors.(150) Serial collaborations have gained significance with the increasing popularity of the Internet, which permits widespread dissemination of works in a form in which they are easily manipulated by the recipient.(151)

How do serial collaborations fare given the restrictions imposed by courts on joint work doctrine? The courts' hostility to the doctrine, and their use of conclusory findings that contributions have not merged, will affect serial collaborations, but not in a fashion different from their effect on any other purported joint work.(152) The subordination of joint work doctrine to work-made-for-hire doctrine prevents finding a joint work in many serial collaborations, such as a studio musician adding an accompaniment or a film editor rearranging footage. However, this subordination will presumably have little impact in the Internet setting, where a recipient could rarely be construed as having been hired by the author of transmitted material.(153) The second and subsequent contributors to serial collaborations may well make independently copyrightable contributions, as required by most courts recently considering the issue, although the manipulation of this standard to avoid joint authorship may prevent any given serial collaboration from being found a joint work.(154) But it is in the courts' requirement of intent to be joint authors that we find the greatest potential bar to joint authorship in the case of a serial collaboration. It is this question which we now examine in some detail.

Where a serial collaboration is alleged to be a joint work, but a joint work is not found, how is the resulting work to be classified?(155) Interestingly, courts rejecting the possibility of a joint work do not always consider the alternatives.(156) If the intent requirement for a joint work stated in the Copyright Act is applied (i.e., the intent for contributions to merge),(157) a serial collaboration may be a joint work if the first author produced her work with the intent that others might add to it. If, on the other hand, courts require an intent to be joint authors, a serial collaboration will be a joint work only where there is evidence that both authors intended co-ownership, such as express statements, copyright registration consented to in both names or joint credit consented to by both.(158) Thus, where intent to be joint authors is required, a serial collaboration is less likely to be found a joint work. Where a serial collaboration is not a joint work, it is either an infringing derivative work or a licensed derivative work, assuming sufficient use of material from the first work and the absence of fair use and other statutory exemptions.(159) In the absence of an express license by the first author, the question of infringement by the second author will turn on the existence of conduct by the first author creating an implied license.(160) Without such a license, the second contributor to the serial collaboration has infringed.

The foregoing scenario has increased in importance with the rapid growth of the Internet in recent years.(161) The Internet particularly implicates serial collaborations because it provides widespread availability of material protected by copyright, because it provides the material in a form in which it can be easily manipulated and adapted, 161 and because a culture of free use has prevailed in some Internet contexts.(163) A handful of judicial decisions have confirmed that copyright infringement can occur via the Internet,(164) and if the recommendations of the Working Group on Intellectual Property's final report are ultimately enacted by Congress in some form, liability for transmission via the Internet will be that much clearer.(165) A case in point may help illustrate the significance of serial collaboration via the Internet. In 1994, the Estate of Elvis Presley demanded that the creator of an Elvis Presley Home Page stop transmitting a "Cyber Graceland Tour" containing Elvis Presley songs and photographs of Graceland in which the estate held the copyright.(166) If the creator of the tour received the sound clips or photographs via the Internet, this was a good example of Internet serial collaboration. A first author distributed material via the Internet and a second author contributed the tour arrangement to produce the final work, which, assuming sufficient use of material and the absence of exemptions, is either an infringing or impliedly licensed derivative work, or a joint work.

To examine how the serial collaboration scenario described above might play out in the Internet context, I collected from five listserv list (or listservs) all examples of express language employed in 1994 by contributors reflecting intent regarding future use of their messages to the lists.(167) The listservs selected were cni-copyright, dinosaur, music research, nerdnosh, and weird-L.(168) I thus chose one listserv on which most contributors would be knowledgeable about copyright law, and might therefore be likely to address the issue of future use, and four listservs in which contributors would be likely to make creative contributions, and might therefore contemplate future use of their works. My search of the archives of the five listservs for 1994 produced numerous examples of express language regarding future use in messages to cni-copyright, the listserv used mainly by copyright experts, but very few in contributions to the creative listservs.(169) It is curious that relatively few attempts are apparently made on listservs to clarify what future uses are intended or permitted by the copyright owner. It may be that many people who are not knowledgeable about copyright law believe that postings to listservs are not protectable by copyright, and that there is, therefore, no need to address the issue.(170)

Where no express language regarding future use is included in a message to a listserv, which appears to be true in the vast majority of cases, any license for making a derivative work or expression of the intent required for a joint work would have to be implied from the circumstances. It has been suggested that contributors to listservs do expect future use of their works.(171) If the expectation on listservs is that others will copy, in whole or in part, to comment or to make additions or other changes in the case of a creative work, this expectation could be construed as either an implied license for such use, or as the intent required for a joint work. As between these two outcomes, which is more advantageous to the first author? If the resulting work is a joint work, the first author can use and license that work, and is entitled to an accounting from the second author for any profits.(172) If, on the other hand, the first author is found to have granted an implied license for creation of a derivative work, she receives none of the above benefits. Consider here the impact of requiring, for creation of a joint work, on the one hand, intent for contributions to merge, and on the other hand, intent to be joint authors.(173) An expectation that one's contribution to a listserv might well be modified by another list subscriber, together with the decision to make the contribution under those circumstances, could be construed as intent for the contributions to merge. Such an expectation is most unlikely, however, to be construed as an intent to be joint authors together with some unknown individual. Thus, under these circumstances, requiring an intent for contributions to merge would permit the joint work outcome, whereas requiring an intent to be joint authors would probably preclude that result. Bear in mind that finding a joint work is more beneficial to the first author than finding an implied license for a derivative work. Of course, in the absence of an expectation that others will modify postings to listservs, any such modification would, assuming sufficient use and the lack of an applicable exemption, constitute an infringing derivative work.

We now examine the impact of the express language regarding future use which I found included in messages on the five listservs. Among the express language regarding future use were waivers of copyright,(174) such as "Unless otherwise indicated, I make no claim of copyright in messages I write for transmission over the Internet" and "No copyright claimed, reproduce at will should you inexplicably care to."(175) Such waivers appear intended, and should be effective, to place the material in the public domain.(176) Note that the first waiver quoted above was followed immediately by, "I hereby grant permission to all others to reproduce, retransmit or copy such messages, subject only to the request to retain the signature line or to give appropriate credit for the use of any such material."(177) This addendum is inconsistent with a waiver, since if there is no copyright, no permission is needed, and thus the addendum renders the waiver, as a whole, ambiguous.(178) Where a waiver is effective, and the material is therefore in the public domain, any subsequent work employing that material would be a derivative work based on public domain antecedents, and would not be a joint work.

Some express language on the five listservs regarding future use was ambiguous as to whether the intent was for reuse limited to unmodified uses of a work in its entirety, or for any reuse including modification. Consider the following four examples: 1) "I grant permission for all my postings to this list to be forwarded to other lists and freely circulated on the nets." 2) "I hereby give permission for the use of any material contained in this message but ask that the user give me appropriate credit." 3) "I also should have said that anyone can feel free to re-post elsewhere for non-commercial purposes. Attribution is appreciated, but not necessary." 4) "Feel free to spread it far and wide, but remember you saw it here first."(179) If such language is construed to include intent for modifications, the expression of that intent could constitute either a license to make derivative works, or expression of intent for the author's contribution to merge with others' contributions. The result in the latter case, assuming sufficient contributions, could therefore be a joint work. However, such language does not express intent to be joint authors, and thus, where intent to be joint authors is required, no joint work could result.

Unambiguous language prohibiting modifications was less commonly employed on the five listservs I examined. Language such as, "This message may be freely distributed, but only if unmodified and not used for commercial purposes,"(180) precludes the possibility of a joint work under either intent requirement, and, assuming sufficient use and the absence of exemptions, renders any derivative work infringing. Even more rare on the listservs I examined was language expressly prohibiting any use.(181) Such language would, of course, preclude a joint work under either intent requirement, and leave any derivative work an infringement, again assuming sufficient use and the absence of exemptions. The scarcity of language expressly prohibiting any use or prohibiting modifications offers some support for the view that listservs are an environment in which creators do expect future use of their works, which has implications, as discussed above, for the vast majority of cases, in which no express language regarding future use is employed.

In sum, we have seen that serial collaborations are less likely to be found joint works under the courts' current requirement of intent to be joint authors, than under a requirement of intent for contributions to merge.(182) Where, as may be true at least in some contexts over the Internet, there is an expectation of future use, the requirement of intent to be joint authors is disadvantageous to the first author, because it will probably produce a finding of an implied license for derivative works, rather than a finding of a joint work. This result may be one more argument, in addition to those adduced in Part III above, against requiring an intent to be joint authors.

What advice for users of the Internet does the preceding analysis of express language used on the five sample listservs suggest? Waivers of copyright, in order to be effective, should be unambiguous. Where the author's intent is to permit only certain uses, those uses should be enumerated. Where reproduction, whether in whole or in part, is to be permitted, but no other modification, such modification should be expressly excluded. Finally, in a context such as the Internet, in which material may be widely available and readily adapted, and in which a culture of free use may prevail, it is important for authors to expressly state their intentions with respect to future use.

V. Conclusion

In constructing a definition of joint works, Congress chose, from the precedents available to it in 1976, the requirement that putative joint authors have the intention, at the time of production, that their creations contribute to one work. The limitations imposed by courts beginning in the late 1980s on the definition of a joint work, in the form of requirements of intent to be joint authors and independently copyrightable contributions, were not then an integral part of the judicial definition of joint works. These limitations form part of a narrow view of joint works taken by courts under the current Copyright Act. This restrictive view has led, in at least a handful of cases, to decisions that have denied creators who should be joint authors that status. We may expect to see more such cases in a variety of contexts; in particular, it is not unlikely that the Internet will provide a fruitful source of such controversies. Based on a limited investigation performed by the author, it appears that the failure of contributors to the Internet to expressly state their intentions regarding future use of their works will contribute to such conflicts. Finally, to the extent that intent for future use is shared by Internet contributors, a requirement of intent to be joint authors benefits the second author of serial collaborations at the expense of the first.

(1) Listserv lists are electronic discussion lists that currently operate on the Internet and cover a wide variety of topics of special interest to the subscribers of each list. The software which supports these discussion lists is called "listserv," an abbreviation of list server. Allen C. Benson, The Complete Internet Companion For Librarians 195 (1995).

(2) Many early cases concerning joint work doctrine dealt with the music industry. See infra Part II (discussing joint work doctrine as it existed prior to the 1976 Copyright Act). For the joint work doctrine, see 17 U.S.C. [sections] 201(a) (1994). See also infra Parts Il and III.

(3) See, e.g., Statement of the Association of American Publishers on the NII Copyright Protection Act of 1995 Before the House Subcomm. on Courts and Intellectual Property, 104th Cong. (Feb. 8, 1996), available in 1996 WL 50046 (stating that "segments of scientific and professional publishing will use the NII [National Information Infrastructure] increasingly to engage in collaborative research and writing"); Benjamin Kaplan, An Unhurried View of Copyright 117 (1967) (stating that "[m]uch intellectual work including the distinctively imaginative is now being done by teams, a practice apt to continue and grow"); Charles D. Ossola, `Joint Work' Theory Raises New Questions on Authors' Rights, Nat'l L.J., Jan. 18, 1993, at S10 (reporting that "[c]omputer programs, motion pictures, multimedia audiovisual works, architectural plans, video games, graphic designs, advertisements and a seemingly endless array of other copyrightable subject matter often end up as joint works"); see also 17 U.S.C. [subsections] 101-1101 (1994) (Copyright Act).

(4) See, e.g., Jonathan Grudin, Computer-Supported Cooperative Work, 34 Comm. ACM 30 (1991) (reporting that "[o]ver the past five years, attention to collaborative computing has increased dramatically"); Michael Schrage, Computer Tools For Thinking in Tandem, 253 Sci. 505 (1991) (reporting a "wave of computer-mediated collaboration now sweeping across science").

(5) See infra note 60 and accompanying text (noting that the significance of joint work doctrine has increased due to restriction of the work-made-for-hire doctrine).

(6) See 17 U.S.C. [sections] 101 (1994) (defining a joint work); Subcomm. on Patents, Trademarks, and Copyrights of Senate Comm. on the Judiciary, 86th Cong., 2D Sess., Copyright Law Revision, Study No. 12, at 89 (Comm. Print 1960) [hereinafter Subcomm. on Patents, Trademarks, and Copyrights] (stating that the 1909 Act did not mention joint authorship and that the legislative history to the 1909 Act was also silent); 1 Melville B. Nimmer & David Nimmer, Nimmer on Copyright [sections] 6.01, at 6-3 n.1 (1997) (stating that "[t]he 1909 Act did not expressly refer to the doctrine of joint ownership").

(7) See Shapiro, Bernstein & Co. v. Jerry Vogel Music Co., 221 F.2d 569 (2d Cir: 1955); see also Gilliam v. American Broad. Cos., 538 F.2d 14, 22 (2d Cir. 1976) (stating that the 12th Street Rag doctrine has been criticized); Register of Copyrights, 87th Cong., 1st Sess., Report on the General Revision of the U.S. Copyright Law 90 (Comm. Print 1961) (stating that the 12th Street Rag case is a "sharp departure from the view previously taken by the courts" and recommending the adoption of "the test laid down by the earlier line of cases"). The 12th Street Rag case held that the required intent to contribute to a larger work can be conceived long after that contribution has been written, and can be conceived by one other than the author of that contribution. See Shapiro, Bernstein & Co., 221 F.2d at 570 (stating that the test is the consent of whoever holds the copyright on the first author's product at the time of the collaboration).

(8) See Childress v. Taylor, 945 F.2d 500, 505 (2d Cir. 1991) (explaining that "[t]hough the early case law is illuminating, our task is to apply the standards of the Copyright Act of 1976 and endeavor to achieve the results that Congress likely intended").

(9) See Register of Copyrights, 89TH Cong., 1st Sess., Supplementary Report on the General Revision of the U.S. Copyright Law 65 (Comm. Print 1965) (stating that the definition of a joint work in the bill "carries out the recommendation of the 1961 Report"); Register of Copyrights, supra note 7, at 90 (recommending adoption of "the test laid down by the earlier [i.e., prior to the 12th Street Rag case] line of cases -- that a joint work is one created by two or more authors who intend to have their contributions joined together as a single work").

(10) For a discussion of the requirements of an independently copyrightable contribution and the intent to be joint authors, see infra notes 69-147 and accompanying text.

(11) 220 F. 195 (S.D.N.Y. 1915), aff'd, 271 F. 211 (2d Cir. 1921).

(12) See Picture Music, Inc. v. Bourne, Inc., 314 F. Supp. 640, 645 (S.D.N.Y. 1970), aff'd on other grounds, 457 F.2d 1213 (2d Cir.), cert. denied, 409 U.S. 997 (1972); cf. Childress, 945 F.2d at 504 (noting that "[c]o-authorship was well known to the common law" and that an early formulation of a definition was endorsed in Maurel).

(13) Maurel, 220 F. at 199 (relying on Levy v. Rutley, 6 L.R.-C.P. 523 (C.P. 1871)).

(14) See, e.g., Reed v. Holliday, 19 F. 325, 326 (C.C.W.D. Pa. 1884) (stating that "plaintiffs are the proprietors ... of two text-books ... of which they are the joint authors and compilers"); Shook v. Rankin, 21 F. Cas. 1337, 1339 (C.C.D. Minn. 1875) finding that the prima facie case of joint authorship was not overcome by defendant's evidence); Bunkley v. De Witt, 4 F. Cas. 665, 666 (C.C.S.D.N.Y. 1855) (finding that plaintiffs evidence of authorship overcame the claim of joint authorship by one of the defendants and a third person).

(15) See cases cited supra note 14; see also Samuel H. Wandell, The Law of the Theatre 476 (1891) (describing the rights of joint authors of plays).

(16) See, e.g., Edward B. Marks Music Corp. v. Jerry Vogel Music Co., 140 F.2d 266, 267 (2d Cir.), modified, 140 F.2d 268 (2d Cir. 1944) (defining a joint work as "a joint laboring in furtherance of a common design'" (quoting Levy v. Rutley, 6 L.R.-C.P. 523, 529 (C.P. 1871)) and stating that the parties must "mean their contributions ... to be embodied in a single work"); Maurel, 271 F. at 215 (stating that "[t]he pith of joint authorship consists in co-operation, in a common design'"); Shapiro, Bernstein & Co. v. Jerry Vogel Music Co., 115 F. Supp. 754, 758-59 (S.D.N.Y. 1953) (stating that joint authorship has been defined as "`joint labouring in furtherance of a common design,'" and that the first author must have intended that his work be complemented by the contribution of some one else), rev'd on other grounds, 221 F.2d 569 (2d Cir.), revd on other grounds, 223 F.2d 252 (2d Cir. 1955); G. Ricordi & Co. v. Columbia Graphophone Co., 258 F. 72, 75 (S.D.N.Y. 1919) (defining joint authorship as "[a] joint labor in carrying out a common design"); Maurel, 220 F. at 199-200 (stating that "`to constitute joint authorship there must be a common design'" and that "[w]hen several collaborators knowingly engage in the production of a piece which is to be presented originally as a whole only, they adopt that common design") (relying on Levy v. Rutley, 6 L.R.-C.P. 523 (C.P. 1871)).

(17) See, e.g., Edward B. Marks Music Corp., 140 F.2d at 267 (stating that the interests of joint authors "will be as inextricably involved, as are the threads out of which they have woven the seamless fabric of the work"); Herbert v. Fields, 152 N.Y.S. 487, 489 (Sup. Ct. 1915) (comparing Maurel, in which "the indissoluble identification of the scenario with the final play was manifest" to the musical comedy at issue, of which the vocal score "is a separable production, copyrighted and sold as such" and therefore not part of a joint work); see also Grosset & Dunlap, Inc. v. Gulf & W. Corp., 534 F. Supp. 606, 609 (S.D.N.Y. 1982) (finding stories and illustrations not a joint work, in part, because the "stories could be enjoyed in full without the illustrations," in an opinion ambiguous as to which act was applied regarding ownership, given events occurring before 1978). This concern with inseparability is not surprising given that the British Copyright Act has required by statute, since 1911, that the contribution of a joint author not be "distinct" or "separate" from the contribution of the other author. Copyright, Designs and Patents Act, 1988, ch. 48, [sections] 10(1)(Eng.) (defining a "`work of joint authorship'" as one in which "the contribution of each author is not distinct from that of the other author or authors"); Copyright Act, 1956, 4 & 5 Eliz. 2, ch. 74, [sections] 11(3) (Eng.) (defining a "work of joint authorship" as one in which "the contribution of each author is not separate from the contribution of the other author or authors"); Copyright Act, 1911, 1 & 2 Geo. 5, ch. 46, [sections] 16(3) (Eng.) (defining a "`work of joint authorship'" as one in which "the contribution of one author is not distinct from the contributions of the other author or authors").

(18) Maurel, 220 F. at 199.

(19) See, eg., Shapiro, Bernstein & Co. v. Jerry Vogel Music Co., 161 F.2d 406, 409 (2d Cir. 1946) (stating that "[t]he words and music of a song ... are as little separable for purposes of the copyright as are the individual musical notes which constitute the melody"); Shapiro, Bernstein & Co., 115 F. Supp. at 758 (stating that whether the resulting work is to be found an "`indivisible product,' turns on the intent each had in mind in respect to his share of the unitary whole").

(20) The Southern District of New York stated in 1970 that "[t]raditionally, joint authorship contemplated collaboration by the authors," but that "in later cases the ingredient of collaboration was eliminated on a finding of a fusion of effort." Picture Music, Inc. v. Bourne, Inc., 314 F. Supp. 640, 645 (S.D.N.Y. 1970), aff'd, 457 F.2d 1213 (2d Cir. 1972). This characterization of the development of the definition of joint works is misleading. The later cases simply addressed a question not addressed by the earlier cases, whether the authors need have worked together and at the same time.

(21) 140 F.2d 266 (2d. Cir. 1944).

(22) Id. at 267. In Marks, the principal of the plaintiff corporation, Marks, wrote lyrics which he intended someone else to set to music and assigned the lyrics to a publisher, who then hired a composer to write the music. See id. at 266. Marks and the composer did not meet until years later. See id.; see also Donna v. Dodd, Mead & Co., 374 F. Supp. 429, 430 (S.D.N.Y. 1974) (relying in part on Marks where "photographs were not taken with [the writers] text specifically in mind" but "may have been intended from the start to become part of a joint work with text from another source"). But cf. Oxford Univ. Press, N.Y., Inc. v. United States, 33 C.C.P.A. 11, 21 (C.C.P.A. 1945) (finding that joint authorship "necessarily implies that co-authors are contemporaries"). The Marks holding was slightly extended in Shapiro, Bernstein & Co. v. Jerry Vogel Music Co., 161 F.2d 406 (2d Cir. 1946), known as the Melancholy Baby case. In the Melancholy Baby case, the Second Circuit extended the Marks rule to cover a case where a composer intended to collaborate with one lyricist at the time he composed the music, and later intended to collaborate with another lyricist, whose lyrics were in fact used. See id. at 410.

(23) 221 F.2d 569 (2d Cir.), rev'd on other grounds, 223 F.2d 252 (2d Cir. 1955).

(24) See id. at 570 (holding that "the test [should be] the consent, by the one who holds the copyright on the product of the first author, at the time of the collaboration, to the collaboration by the second author"); see also Donna, 374 F. Supp. at 430 (relying, in part, on the 12th Street Rag case where a photographer may not have intended, when taking photographs, for the photographs to be joined with text, but did so later intend). But see Szekely v. Eagle Lion Films, Inc., 242 F.2d 266, 268 (2d Cir. 1957) (implying that intent for a contribution to become part of one work must be present "at the inception of the [original] work").

(25) See supra note 9 for legislative history clarifying that the definition of a joint work in the revision bill was intended to adopt the test laid down by the line of cases prior to the 12th Street Rag case. The language of the [sections] 101 definition of a joint work requires that the authors possess the required intent and that the intent be present at the time the contributions are prepared, but not that the authors work together or simultaneously. See 17 U.S.C. [sections] 101 (1994) (defining a joint work as "a work prepared by two or more authors with the intention that their contributions be merged into ... parts of a unitary whole"). The House Report to the 1976 Act also explained that "a work is `joint' if the authors collaborated with each other [i.e., worked together and at the same time), or if each of the authors prepared his or her contribution with the knowledge and intention that it would be merged with the contributions of other authors," and that the intention must be present "at the time the writing is done." H.R. Rep. No. 94-1476, at 120 (1976), reprinted in 1976 U.S.C.C.A.N. 5659, 5736 (emphasis added).

(26) For a discussion of the requirement of an independently copyrightable contribution, see infra notes 110-45 and accompanying text.

(27) See Gilliam v. American Broad. Cos., 538 F.2d 14, 22 (2d Cir. 1976); Picture Music, Inc. v. Bourne, Inc., 314 F. Supp. 640, 647 (S.D.N.Y. 1970), aff'd on other grounds, 457 F.2d 1213, 1215 (2d Cir. 1972) (affirming on the grounds that the second contributor's contribution "was work done for hire"); cf. Muller v. Walt Disney Prods., 871 F. Supp. 678 (S.D.N.Y. 1994) (finding that a 1939 contract between the conductor and the studio was unambiguous evidence that the parties contemplated work for hire and not joint authorship). Muller, although nominally decided under the 1909 Act, used exclusively 1976 Act case law to support its statement that in joint authorship determinations, "courts focus on whether the persons regarded themselves as joint authors." See id. at 684 & n.2.

(28) See supra note 9 (citing legislative history to the 1976 Act).

(29) 314 F. Supp 640 (S.D.N.Y. 1970).

(30) See id. at 642-43.

(31) See id. at 646.

(32) See id. at 647; see also Picture Music, Inc. v. Bourne, Inc., 457 F.2d 1213, 1215 (2d Cir. 1972) (stating that "the trial court appears to have relied principally" on the theory that the second contributor's contribution was not substantial enough").

(33) Picture Music, Inc., 314 F. Supp. at 647.

(34) Id.

(35) If the court had taken seriously a requirement of intention to become joint owners, it would have had to address here the fact that Berlin, the assignee, credited the song on sheet music to both contributors, which supports the view that both parties did intend to be joint owners. See id. at 643.

(36) 538 F.2d 14 (2d Cir. 1976).

(37) See id. at 22.

(38) Id.

(39) See id. (noting criticism of the 12th Street Rag doctrine).

(40) See supra notes 20-22 and accompanying text (discussing the Marks rule).

(41) Gilliam, 538 F.2d at 22.

(42) 17 U.S.C. [sections] 101 (1994).

(43) Congress had considered the possibility of requiring inseparable contributions early in the revision process. See Subcomm. on Patents, Trademarks, and Copyrights, supra note 6, at 109-10 (suggesting the

(44) For the intent of Congress to reject the 12th Street Rag doctrine and to adopt a definition generally consistent with prior case law, see supra notes 9, 25 and accompanying text.

(45) See Peter Jaszi, On the Author Effect: Contemporary Copyright and Collective Creativity, 10 Cardozo Arts & Ent. L.J. 293, 315 (1992) (arguing that "in many particular instances copyright refuses to acknowledge the existence of 'joint authorship,' or does so only grudgingly"); cf. Community for Creative Non-Violence v. Reid, 846 F.2d 1485, 1496 n. 14 (D.C. Cir. 1988) (entertaining Community for Creative Non-Violence's [hereinafter CCNV] joint authorship claim, although not raised before the district court, and remanding for consideration whether sculpture was a joint work), aff'd on other grounds, 490 U.S. 730, 753 n.32 (1989) (refraining from passing judgment on the applicability of the joint authorship provisions because neither party sought review of the remand order).

(46) For the courts' wariness concerning the joint work doctrine, see for example, Erickson v. Trinity Theatre, Inc., 13 F.3d 1061, 1068 (7th Cir. 1994) (expressing concern that "even a person whose contribution is relatively minor, if accorded joint authorship status, enjoys a significant benefit"), and Respect Inc. v. Committee on the Status of Women, 815 F. Supp. 1112, 1119 (N.D. Ill. 1993) (expressing concern that "crediting a minor contributor with joint-authorship status confers substantially greater benefits than the relative amount of his or her effort" because joint authors hold equal interests).

(47) 945 F.2d 500 (2d Cir. 1991).

(48) See id. at 502.

(49) For a discussion of judicial requirements as to the contribution necessary from each co-author, see infra notes 110-44 and accompanying text.

(50) Childress, 945 F.2d at 507.

(51) Id. at 509.

(52) See, e.g., Forward v. Thorogood, 985 F.2d 604, 606-07 (1st Cir. 1993) (considering joint authorship only after finding no work made for hire); M.G.B. Homes, Inc. v. Ameron Homes, Inc., 903 F.2d 1486, 1492-93 (11th Cir. 1990) (establishing that house plans were not a work made for hire before considering the possibility that M.G.B. was a joint author); Community for Creative Non-Violence v. Reid, 846 F.2d 1485, 1495 (D.C. Cir. 1988) (considering existence of a joint work only after having rejected the possibility of a work made for hire), aff'd on other grounds, 490 U.S. 730 (1989); Respect, Inc. v. Committee on the Status of Women, 815 F. Supp. 1112, 1116-19 (N.D. Ill. 1993) (same); Aitken, Hazen, Hoffman, Miller, P.C. v. Empire Constr. Co., 542 F. Supp. 252, 256-59 (D. Neb. 1982) (same); Meltzer v. Zoller, 520 F. Supp. 847, 854-57 (D.N.J. 1981) (same); see also Philadelphia Orchestra Ass'n v. Walt Disney Co., 821 F. Supp. 341, 347-49 (E.D. Pa. 1993) (finding under the 1909 Act that the work was not joint because it was work made for hire).

(53) 896 F.2d 1485 (D.C. Cir. 1988), aff'd on other grounds, 990 U.S. 730 (1989).

(54) See id. at 1496-97 (discussing the possibility that the sculpture at issue was a joint work). The District of Columbia Circuit entertained CCNV's claim of joint authorship although the issue was not raised before the district court. See id. at 1496 n.14.

(55) See id. at 1497 n. 18.

(56) Id. at 1497. The court remanded the case for further consideration of the joint authorship claim. See id.

(57) See Childress v. Taylor, 945 F.2d 500, 507 n.6 (2d Cir. 1991).

(58) See id.

(59) Id.

(60) See 17 U.S.C. [sections] 101 (1994) (defining a "joint work" and a "work made for hire"); cf. H.R. Rep. No. 94-1476, at 120 (1976), reprinted in 1976 U.S.C.C.A.N. 5659, 5736.

(61) Note that although this choice may be justifiable, the courts making the choice have offered no justification. A corollary to the priority of work made for hire over joint works is that once the scope of work made for hire was restricted by the Supreme Court in Community for Creative Non-Violence, the arena left for joint works expanded. See Community for Creative Non-Violence, 490 U.S. 730, 750-51 (1989) (limiting works made for hire under [sections] 101(1) to works produced by employees as defined by agency principles); see also Community for Creative Non-Violence, 846 F.2d 1485, 1497 n.17 (D.C. Cir. 1988) (stating that because of the narrower scope of the work-made-for-hire doctrine under the 1976 Act than under the 1909 Act, "more cases of this genre can be expected to appear under the joint authorship rubric").

(62) See, e.g., Aerospace Servs. Int'l v. LPA Group, Inc., 57 F.3d 1002, 1004 (11th Cir. 1995) (stating that "[t]he evidence in the instant case supports the district court's finding that '... the respective contributions of ASI and LPA were neither "inseparable" nor "interdependent"'" where portions of ASI's document were incorporated verbatim into two other documents, thus becoming interdependent parts); Eckert v. Hurley Chicago Co., 638 F. Supp. 699, 704 (N.D. Ill. 1986) (stating that a picture of a water filter which had been placed in a brochure was "not an inseparable or interdependent part of the whole of the brochure").

(63) See, e.g., M.G.B. Homes, Inc. v. Ameron Homes, Inc., 903 F.2d 1486, 1493 (11th Cir. 1990); Whelan Assocs., Inc. v. Jaslow Dental Lab., Inc., 609 F. Supp. 1307, 1319 (E.D. Pa. 1985) (stating that although Rand Jaslow had given instructions for the creation of a computer program, "[t]here is not a scintilla of evidence that the parties ever intended that Rand Jaslow's contributions, whatever they may have been, should merge into the final computer design and system"), aff'd on othergrounds, 797 F.2d 1222 (3d Cir. 1986), cert. denied, 479 U.S. 1031 (1987).

(64) 903 F.2d 1486 (11th Cir. 1990).

(65) See id. at 1493.

(66) 17 U.S.C. [sections] 101 (1994).

(67) See Childress v. Taylor, 945 F.2d 500, 507 (2d Cir. 1991) (stating that "[t]he wording of the statutory definition appears to make relevant only the state of mind regarding the unitary nature of the finished work"); Respect Inc. v. Committee on the Status of Women, 815 F. Supp. 1112, 1120 (N.D. Ill. 1993) (noting that "the statutory language might be read as asking only whether the putative co-authors intended a unitary finished work" but that "the cases have taken a different view").

(68) See 1 Nimmer & Nimmer, supra note 6, [sections] 6.07, at 6-24 to 6-25 (stating that the Act "contains no requirement that each contribute an independently copyrightable component" and that the legislative history "elevates intention as the touchstone, without placing any further parsing as to the copyrightable status of each individual component that the parties intend to contribute").

(69) See H.R. Rep. No. 94-1476, at 120 (1976), reprinted in 1976 U.S.C.C.A.N.

5659, 5736.

[A] work is "joint" if the authors collaborated with each other, or if each

of the authors

prepared his or her contribution with the knowledge and intention that it

would be

merged with the contributions of other authors as "inseparable or

interdependent parts

of a unitary whole." The touchstone here is the intention, at the time the

writing is done,

that the parts be absorbed or combined into an integrated unit. Id.

The concern expressed by the Second Circuit in Childress and by the Seventh Circuit in Erickson v. Trinity Theatre, Inc., that the above-quoted passage from the legislative history introduces ambiguity into the reading of the statute, results from an excessively literal-minded reading of this passage. See Erickson v. Trinity Theatre, Inc., 13 F.3d 1061, 1068-69 (7th Cir. 1994); Childress, 945 F.2d at 505; see also Respect, Inc., 815 F. Supp. at 1119 (raising the same concern). The Second and Seventh Circuits raised the possibility that this passage was intended to create two alternative criteria, either an act of collaboration or the appropriate intent. However, the above-quoted passage was merely intended to make it clear that joint authors need not work simultaneously and together, i.e. collaborate, but may work sequentially and apart, so long as each has the intent that his or her contribution will be merged into the whole. See Copyright Law Revision, pt. 3, Preliminary Draft for Revised U.S. Copyright Law and Discussions and Comments on the Draft 15 n.10 (1964) (clarifying through comments of Abe Goldman of the Copyright Office that "in collaboration or with the intention that their contributions be merged into indistinguishable or interdependent parts of a unitary whole" means that a work can be joint even if the authors worked "separately and without knowledge of the other").

(70) See 17 U.S.C. [sections] 101 (1994) (requiring for creation of a joint work that authors have "the intention that their contributions be merged into inseparable or interdependent parts of a unitary whole"); Aerospace Servs. Int'l v. LPA Group, Inc., 57 F.3d 1002, 1004 (11th Cir. 1995) (stating that the evidence supports the finding that the "parties did not intend for the [document] to be a joint work'"); Erickson, 13 F.3d at 1068, 1070 (stating that "the statute itself requires that there be an intent to create a joint work" and that "the parties must have intended to be joint authors"); Childress, 945 F.2d at 507-08 (requiring that putative joint authors have the "intent ... to regard themselves as joint authors" and that they have the "intent to be co-authors"); Ashton-Tate Corp. v. Ross, 916 F.2d 516, 522 (9th Cir. 1990) (implying that parties must have "intended to create a joint work"); Weissmann v. Freeman, 868 F.2d 1313, 1320 (2d Cir. 1989) (requiring that the work have been "intended to be joint); Design Options, Inc. v. BellePointe, Inc., 940 F. Supp. 86, 90 (S.D.N.Y. 1996) (requiring "intention to author or own the designs jointly"); Clogston v. American Academy of Orthopaedic Surgeons, 930 F. Supp. 1156, 1159 (W.D. Tex 1996) (requiring that "each of the collaborators [have] intended the other to be a joint author of the work"); Papa's-June Music, Inc. v. McLean, 921 F. Supp. 1154, 1157 (S.D.N.Y. 1996) (requiring that parties "intend to regard themselves as joint authors" and stating that "[i]t is not enough that they intend to merge their contributions'); Cabrera v. Teatro del Sesenta, Inc., 914 F. Supp. 743, 767 (D.P.R. 1995) (requiring that "all contributors must fully intend to be joint authors"); Beloit Corp. v. C3 Datatec, Inc., No. 93-C-447, 1995 U.S. Dist. LEXIS 16685, at *16 (E.D. Wisc. Aug. 23, 1995) (requiring that the "parties intend[] to be joint authors"), aff'd, 78 F.3d 586 (7th Cir. 1996); Vondran v. McLinn, No. C 95-20296 RPA, 1995 WL 415153, at *5 (N.D. Cal. July 5, 1995) (requiring intent "to be joint authors"); Villa Crespo Software, Inc. v. Chicago Computer Broker, Inc., No. 94-C-737, 1994 WL 682697, at *3 (N.D. Ill. Dec. 5, 1994) (stating that "contributors must intend to create a joint work" and finding no evidence that the parties intended a joint work); Napoli v. Sears, Roebuck & Co., 858 F. Supp. 101, 103 (N.D. Ill. 1994) (stating that the Seventh Circuit requires that "the parties ... have intended to be joint authors"); Rubloff, Inc. v. Donahue, 31 U.S.P.Q.2D (BNA) 1046, 1049 (N.D. Ill. 1994) (stating that the Seventh Circuit requires that "the parties ... intend to be joint authors"); Merchant v. Lymon, 828 F. Supp. 1048, 1058 (S.D.N.Y. 1993) (requiring that "the parties [have] intended to regard themselves as joint authors" and finding no joint authorship because defendants have not shown that the studio musician who contributed a saxophone solo "intended to be accorded the status of a co-author"); Respect, Inc., 815 F. Supp. at 1120-21 (stating that "[i]t is only where that dominant author intends to be sharing authorship that joint authorship will result'" and finding that the plaintiff "never intended to make anyone else a joint author"); Softel, Inc. v. Dragon Med. & Scientific Communications, Inc., No. 87 Civ. 0167 (JMC), 1992 WL 168190, at *16 (S.D.N.Y. June 30, 1992) (reciting that a putative joint author must show that "he or she intended to contribute to a joint work" but finding plaintiff did not intend merger into the whole); Morita v. Omni Publications Int'l, Ltd., 741 F. Supp. 1107, 1113 (S.D.N.Y. 1990) (supporting finding of genuine issues of material fact with plaintiff's contention that "he never intended to ... create a joint work"); Steve Altman Photography v. United States, 18 Cl. Ct. 267, 282 (Cl. Ct. 1989) (finding no joint work because the defendant did not "testify that he intended ... to contribute to the joint creation of an artistic work" and because "[p]laintiff testified specifically ... that he did not intend to create a joint work").

The legislative history reiterates that "[t]he touchstone here is the intention, at the time the writing is done, that the parts be absorbed or combined into an integrated unit" and fails to mention intent to be joint authors. H.R. Rep. No. 94-1476, at 120 (1976), reprinted in 1976 U.S.C.C.A.N. 5659, 5736. Note that throughout the lengthy process of formulating the 1976 Act, the aspect of the definition of joint works which was focused upon was the intention of the creators of a work. See H.R. Rep. No. 90-83, at 84-85 (1967) (presenting a discussion of the definition of joint works identical to that in House Report 1476); Copyright Law Revision, pt. 3, Preliminary Draft for Revised U.S. Copyright Law and Discussions and Comments on the Draft 265 (1964) (comments of Harry R. Olsson of ABC arguing that the existence of a joint work should not be dependent on the intentions of the authors); Copyright Law Revision, pt. 2, Discussion and Comments on Report of the Register of Copyrights on the General Revision of the U.S. Copyright Law, 88th Cong., Discussion of 1961 Report (1963) 144-51, 359 (Comm. Print 1963) (focusing on the intent requirement in the definition of joint works); Register of Copyrights, 87th Cong., 1st Sess., Report of the Register of Copyrights on the General Revision of the U.S. Copyright Law 156 (Comm. Print 1961) (recommending that a joint work be defined as a work created "with the object of integrating [the creators'] contributions into a single work"); Subcomm. on Patents, Trademarks, and Copyrights, supra note 6, at 107-08 (criticizing the 12th Street Rag doctrine).

(71) See, e.g., Aerospace Servs. Int'l, 57 F.3d at 1004; Erickson, 13 F.3d at 1068; Childress, 945 F.2d at 507-09; Ashton-Tate Corp., 916 F.2d at 522; Vondran, No. C 95-20296 RPA, 1995 WL 415153, at *5; Rubloff, Inc., 31 U.S.P.Q.2d (BNA) at 1049; Respect, Inc., 815 F. Supp. at 1119; Morita, 741 F. Supp. at 1113.

(72) See, e.g., Erickson, 13 F.3d at 1068-70 (stating that "the statute itself requires that there be an intent to create a joint work" and that "the statutory language clearly requires that each author intend that their [sic] respective contributions be merged into a unitary whole" and that "the parties must have intended to be joint authors"); Weissmann, 868 F.2d at 1319-20 (stating that "the parties must evince 'the intention that their contributions be merged'" and that there was proof that the "work was not intended to be joint"); Cabrera, 914 F. Supp. at 764, 767-68 (reciting the requirement of intent that the contributors' "contributions be merged into a unitary whole" but requiring intent "to be joint author"); Softel, Inc., 1992 WL 168190, at *16 (stating that a putative joint author must show "that at the time the work was created he or she intended to contribute to a joint work" and finding no joint work because the principal of the plaintiff corporation did not intend merger into the whole); Erickson v. Trinity Theatre, Inc., No. 91-C-1964, 1992 U.S. Dist. LEXIS 2690, at *25, 28 (N.D. Ill. Mar. 6, 1992) (stating that each author must intend his contribution to constitute part of a total work, that the putative authors must have "regarded themselves as joint authors," and that "the court in Childress ruled that the statutory intent inquiry meant that both participants must have regarded themselves as joint authors"), aff'd, 13 F.3d 1061 (7th Cir. 1994); Steve Altman Photography, 18 Cl. Ct. at 282 (stating that "[j]oint authors must intend ... that their contributions be merged into an inseparable work" and that there was no joint work because "[p]laintiff testified specifically ... that he did not intend to create a joint work"). But see Fisher v. Klein, 16 U.S.P.Q.2d (BNA) 1795, 1798 (S.D.N.Y. 1990) (stating that the parties must have "the shared intention that the contributions be merged into a unitary whole" and that "[i]t is only where [the] dominant author intends to be sharing authorship that joint authorship will result" but recognizing that the latter is an "additional requirement").

(73) See Childress, 945 F.2d at 507-08 (stating that although "[t]he wording of the statutory definition appears to make relevant only the state of mind regarding the unitary nature of the finished work," the court will "[f]ocus[] on whether the putative joint authors regarded themselves as joint authors"); Respect, Inc., 815 F. Supp. at 1120 (stating that "[e]ven though the statutory language might be read as asking only whether the putative co-authors intended a unitary finished work, the cases have taken a different view").

(74) See Childress, 945 F.2d at 507 (stating that a narrower definition is needed to avoid making joint authors those "who are not likely to have been within the contemplation of Congress" such as editors or research assistants); Respect, Inc., 815 F. Supp. at 1120 (stating that a narrower definition is needed to avoid "extend[ing] joint author status to many who are plainly beyond its intended scope").

(75) See, eg., Design Options, Inc., 940 F. Supp. at 90 (requiring intent 'that the work be jointly owned" and finding "no evidence of a shared intention to author or own the designs jointly").

(76) See, e.g, Erickson, 13 F.3d at 1072 (finding that "there is evidence that [the playwright], too, intended at the time to create a joint work because she initially attributed the script to both [the actress] and herself"); Childress, 945 F.2d at 508 (stating that a "useful test" for intent to be joint authors is whether "each participant intended that all would be identified as co-authors ... [t]hough 'billing' or 'credit' is not decisive in all cases;" Weissmann, 868 F.2d at 1320 (finding that scientist's "use of her own by-line on [the article] constitutes prima facie proof that this work was not intended to be joint"); Herbert v. United States, 36 Fed. Cl. 299, 309 (1996) (requiring intent for contributions to merge and intent that parties "be listed equally as co-authors"); Clogston v. American Academy of Orthopaedic Surgeons, 930 F. Supp. 1156, 1159-60 (W.D. Tex. 1996) (finding that book credits did not show parties' intent that photographer be a co-author); Respect, Inc., 815 F. Supp. at 1120-21 (finding that the plaintiff writer "could not have made her intention [not to make anyone else a joint author] more plain than by the way she billed herself in each of the books, . . . by stating that they were 'by Coleen Kelly Mast'").

(77) See Beloit Corp. v. C3 Datatec, Inc., No. 93-C-447, 1995 U.S. Dist. LEXIS 16685, at *17 (E.D. Wis. Aug. 23, 1995) (accepting, as evidence of intent to be joint authors, that a party "credited [the contributor] as the copyright holder in all but one manual"); Respect, Inc., 815 F. Supp. at 1120-21 (using copyright notice in her own name alone as evidence of the writer's intent that no one else be a joint author); Fisher, 16 U.S.P.Q.2d (BNA) at 1797-99 (finding, based in part on copyright registration forms completed in both names as authors, that both jewelers had intent for joint authorship).

(78) This appears to be what in fact occurred in Erickson, Childress, Weissmann, and Cabrera. See Erickson, 13 F.3d 1061; Childress, 945 F.2d 500; Weissmann, 868 F.2d 1313; Cabrera, 914 F. Supp. 743. For a discussion of the soundness of the outcomes in these cases, see infra notes 97-104 and 132-43 and accompanying text.

(79) 16 U.S.P.Q.2d (BNA) 1795 (S.D.N.Y. 1990).

(80) Fisher, 16 U.S.P.Q.2d (BNA) at 1798, quoted in Childress, 945 F.2d at 508 and Respect Inc., 815 F. Supp. at 1120.

(81) In Childress, the actress, Taylor, argued that the district court's emphasis on Childress's lack of intent for Taylor to be a joint author "misapplie[d] the statutory standard by focusing on whether Childress `intended the legal consequences which flowed from her prior acts.'" Childress, 945 F.2d at 508 (quoting Brief for Appellant at 22). The Second Circuit dismissed this objection by exaggerating Taylor's objection and then refuting that exaggerated version; the district court, the Second Circuit argued, had never inquired whether Childress intended every specific characteristic of joint ownership. See id.

(82) 945 F.2d 500 (2d Cir. 1991).

(83) See id. at 507-09. The Childress court expressly did not determine whether the actress' contributions were sufficient. See id. at 509. The Second Circuit used, apparently interchangeably, the phrases "intent ... to regard themselves as joint authors," "regarded themselves as joint authors," and "intend[ed] to be joint authors." Id. at 507-09.

(84) The Childress court discussed policy reasons for deviating from the statutory definition, addressed the charge that the court below and the Second Circuit were requiring the intent for the legal consequences which flow from acts of collaboration, discussed precedent for the court's position, returned to policy reasons supporting the court's requirement, and then applied the standard to the case at hand. See id. at 508-09.

(85) Id. at 508.

(86) See Childress v. Taylor, 20 U.S.P.Q.2d (BNA) 1181, 1183-85 (S.D.N.Y.), aff'd, 945 F.2d 500 (2d Cir. 1991). Cf. Childress, 945 F.2d at 509 (stating that the district court's "primary basis for summary judgment was the absence of any evidence supporting an inference that [the playwright) shared `[the actress'] notion that they were co-authors'").

(87) 868 F.2d 1313 (2d Cir.), cert. denied, 493 U.S. 883 (1989).

(88) See id. at 1319-20 (stating that "the parties must evince "the intention that their contributions be merged,'" that the scientist's crediting the work to her own name alone shows "she intended this particular piece to represent her own individual authorship" and was "proof that this work was not intended to be joint"). The Second Circuit cited no precedent for the proposition that intent to be joint authors is required. To support its finding for the scientist, the court also relied on its finding, as to the contribution requirement, that the mentor had "played no role in [the work's] creation." Id. at 1320. This finding was dependent on the court's conclusion that, at the time the scientist made her last contributions, the joint work was over, a conclusion which resulted from the court's view of the intent requirement.

(89) See Childress, 945 F.2d at 508 (citing the Weissman and Fisher opinions).

(90) See Fisher v. Klein, 16 U.S.P.Q.2d (BNA) 1795, 1798 (S.D.N.Y. 1990). The Fisher court cited no precedent for this proposition. See id. The court found that in that instance of two jewelers working together, the required "shared intention that their contributions would be merged in the sense of co-authorship" was present. Id. at 1799.

(91) See M.G.B. Homes, Inc. v. Ameron Homes, Inc., 903 F.2d 1486, 1493 (11th Cir. 1990); Aitken, Hazen, Hoffman, Miller, P.C. v. Empire Constr. Co., 542 F. Supp. 252, 259 (D. Neb. 1982). These opinions did not cite any earlier precedent concerning the intent to be joint authors; however, they have been cited by later cases discussing this point. See, e.g., Whelan Assocs., Inc. v. Jaslow Dental Lab., Inc., 609 F. Supp. 1307, 1319 (E.D. Pa. 1985), aff'd on other grounds, 797 F.2d 1222 (3d Cir. 1986), cert. denied, 479 U.S. 1031 (1987); Geshwind v. Garrick, 734 F. Supp. 644, 650 (S.D.N.Y. 1990), aff'd, 927 F.2d 594 (2d Cir.), cert. denied, 502 U.S. 811 (1991); see also Softel, Inc. v. Dragon Med. & Scientific Communications Inc., No. 87 Civ. 0167, 1992 WL 168190, at *17 (S.D.N.Y. June 30,1992) (citing Whelan Assocs., Inc., 609 F. Supp. at 1307).

(92) See M.G.B. Homes Inc., 903 F.2d at 1493 (stating that client's making a thumbnail sketch "is normally expected'" but that such involvement does not make the client an author); Aitken, Hazen, Hoffman, Miller P. C., 542 F. Supp. at 259 (stating that "it is quite normal for the client to supply the engineer or architect with general design features which the client expects to be incorporated into the architectural plans and for the professional then to create the design drawings incorporating those features").

(93) 13 F.3d 1061 (7th Cir. 1994).

(94) Id. at 1068, 1070-73 (stating "that the statute itself requires that there be an intent to create a joint work" and that "the parties must have intended to be joint authors at the time the work was created"). The Seventh Circuit cited Paul Goldstein rather than Childress for this proposition, but cited Childress frequently for other points. See id. at 1068, 1070-72. It is unclear from Professor Goldstein's treatise whether he was requiring the same intent as the Seventh Circuit, that is, an intent for joint credit and co-ownership. See 1 Paul Goldstein, Copyright [section] 4.2.1.1, at 4:7 (2d ed. 1994). Professor Goldstein did state that each author must have "intended to create a joint work," but in the following sentence, he stated that a joint work would result where each author intended that his contribution form part of a unitary whole. Id. The Erickson court found that the required intent was missing for two of the three plays. See Erickson, 13 F.3d at 1072.

(95) See Aerospace Servs. Int'l v. LPA Group, Inc., 57 F.3d 1002, 1004 (11th Cir. 1995) (stating that the evidence supports the district court's finding that the parties did not intend for the work to be a joint work); Ashton-Tate Corp. v. Ross, 916 F.2d 516, 522 (9th Cir. 1990) (stating that if the parties "intended to create a joint work" and if both made appropriate contributions, they may both have an interest in the work).

(96) 846 F.2d 1485, 1496-97 (D.C. Cir. 1988), aff'd on other grounds, 490 U.S. 730 (1989).

(97) Id. at 1496-97 (stating that the sculpture "appears to have been treated by those who labored to create it as a unitary whole" and that "various indicia [were present] of the parties' intent ... to merge their contributions into a unitary whole"). The District of Columbia Circuit, discussing joint works in order to provide guidance to the district court on remand, concluded that the sculpture at issue "might qualify as a textbook example of a jointly-authored work." Id. at 1497.

(98) See Weissmann v. Freeman, 868 F.2d 1313 (2d Cir.), cert. denied, 493 U.S. 883 (1989).

(99) See id. at 1319-20 (requiring the intent for joint authorship, of which the scientist's use of her own name alone on the syllabus was prima facie proof; finding that the parties' collaboration had terminated when the scientist made changes to the prior joint work and affixed her name alone).

(100) Note that the Weissmann district court defined the required intent as "`a joint laboring in furtherance of a preconcerted common design,'" explained that it is sufficient "if each contributor contemplates that his work will form part of a whole to which someone else will also contribute," and did not require intent to be joint authors. Weissmann v. Freeman, 684 F. Supp. 1248, 1259-60 (S.D.N.Y. 1988) citation omitted), aff'd in part, rev'd in part, 868 F.2d 1313 (2d Cir.), cert. denied, 493 U.S. 883 (1989). The district court concluded that the syllabus at issue was a joint work. See id. at 1260. Of the four judges that considered Weissmann, two found a joint work. See id.; Weissmann, 868 F.2d at 1328 (Lumbard, J., dissenting) (stating Judge Lumbard's vote to affirm the district court for the reasons stated in the district court opinion). Note that under the view of the case presented in the text and adopted by the district court, the Second Circuit's objection that the defendant had not contributed to the plaintiff's last contribution loses all force. See id. at 1320 finding that the defendant had not contributed to the syllabus because he had not contributed to the changes made by the plaintiff in 1985). As the concurring Second Circuit judge pointed out, in order to be a joint author, one need not "have contributed to each incremental addition to the work." Id. at 1327 (Pierce, J., concurring).

(101) See Weissmann, 684 F. Supp. at 1254-55.

(102) See Weissmann, 868 F.2d at 1320-23. The Second Circuit found that the 1985 syllabus was a derivative work based on an underlying joint work. See id.

(103) See id. at 1320. Certainly by the time the plaintiff scientist brought suit in 1987, she did not intend that her mentor share ownership in the 1985 version of the syllabus. The court's reliance on her use of her own name alone on the syllabus in 1985 to find she lacked that intention in 1985 may have been misguided. The district court had noted that an earlier instance of the plaintiff's use of her own name alone on a syllabus was "some indication of a practice that, rather than designating the authorship, the by-line name appearing on such review course material was utilized as an identification of the reviewer or lecturer who was to appear before the audience." Weissmann, 684 F. Supp. at 1255.

(104) See Childress v. Taylor, 945 F.2d 500, 502 (2d Cir. 1991). The Second Circuit required copyrightable contributions. See id. at 507. For discussion of the contribution standard, see infra notes 106-144 and accompanying text.

(105) See Childress, 945 F.2d at 502, 507, 509 (listing the actress's contributions to the play, requiring copyrightable contributions, expressly not determining whether the actress's contributions satisfied the copyrightability standard because the playwright did not intend joint authorship as shown by her unwillingness to share credit and to sign a co-ownership agreement). This position of the Childress court has been followed. See Armento v. Laser Image, Inc., 950 F. Supp. 719, 728 n.3 (W.D.N.C. 1996) (stating that if the court were to address the question of joint authorship, it would find no joint authorship because the illustrator's "intent to remain sole author of the map artwork would alone be enough to stop [alleged joint author's] joint authorship claim" (citing Childress, 945 F.2d at 509)).

(106) The Second Circuit in Childress expressed concern that editors and research assistants may satisfy the contribution standard, but should not be accorded joint authorship status. See Childress, 945 F.2d at 507. The court concluded that if either contributor lacked the intent for joint authorship, a joint work would not result. See id. at 509 (stating that "equal sharing of rights should be reserved for relationships in which all participants fully intend to be joint authors').

(107) See M.G.B. Homes, Inc. v. Ameron Homes, Inc., 903 F.2d 1486, 1493 (11th Cir. 1990); Geshwind v. Garrick, 734 F. Supp. 644, 650-51 (S.D.N.Y. 1990) (stating that the "fact that the agent, Geshwind, wanted changes in details and aspects of the portrait and even made suggestions, the compliance with which may or may not have improved the effect, does not make him the creator. The artist, Leich, is the creator."), aff'd, 927 F.2d 594 (2d Cir.), cert. denied, 502 U.S. 811 (1991); Whelan Assocs., Inc. v. Jaslow Dental Lab, Inc., 609 F. Supp. 1307, 1318-19 (E.D. Pa. 1985), aff'd on other grounds, 797 F.2d 1222 (3d Cir. 1986), cert. denied, 479 U.S. 1031 (1987); Aitken, Hazen, Hoffman, Miller, P.C. v. Empire Constr. Co., 542 F. Supp. 252, 259 (D. Neb. 1982).

(108) See M.G.B. Homes, Inc., 903 F.2d at 1493 (stating that where the client had contributed a "thumbnail sketch of the floor plan ... `[s]uch involvement by a client in the preparation of architectural plans is normally expected'" but that such involvement does not make the client an author); Aitken, Hazen, Hoffman, Miller, P.C., 542 F. Supp. at 259 (stating that in the client-architect relationship, "it is quite normal for the client to supply the ... architect with general design features which the client expects to be incorporated into the architectural plans and for the professional" to create the drawings).

(109) 609 F. Supp. 1307 (E.D. Pa. 1985).

(110) Id. at 1319; see also Softel, Inc. v. Dragon Med. & Scientific Communications, Inc., No. 87 Civ. 0167, 1992 WL 168190, at *17 (S.D.N.Y. June 30, 1992) (stating that in the case of a client and an architect, "the owner is not a co-author of the drawings regardless of the extent of the owner's participation in offering ideas and setting limitations").

(111) See 17 U.S.C. [section] 101 (1994) (defining joint works).

112 See id. (defining joint works without reference to the nature of the contribution required); H.R. Rep. No. 94-1476, at 120 (1976), reprinted in 1976 U.S.C.C.A.N. 5659, 5736 (failing to discuss the nature of the required contribution). Debate on the definition of joint works during the lengthy legislative process leading to adoption of the 1976 Act focused on the intent requirement and did not mention the nature of required contributions. See supra note 25 (reviewing the legislative history as to the required intent); S. Rep. No. 94-473, at 103, 104 (1975) (explaining proposed bill in the same language as House Report 1476); S. Rep. No. 93-983, at 155 (1974) (same); H.R. Rep. No. 90-83, at 84-85 (1967) (same); Copyright Law Revision, pt. 5,1964 Revision Bill with Discussions and Comments, 89th Cong., 1st Sess. 144, 151-52 (Comm. Print 1965) (failing to mention nature of required contribution for creation of a joint work); Register of Copyright, 87th Cong, 1st Sess., Report on the General Revision of the U.S. Copyright Law 89-90 (Comm. Print 1961) (failing to discuss the nature of required contribution); Subcomm. on Patents, Trademarks, and Copyrights, supra note 6, at 109-10 (suggesting the possibility of requiring inseparable contributions but not discussing the nature of each contribution required); 1 Nimmer & Nimmer, supra note 6, [section] 6.07 at 6-24 to 6-25 (stating that the legislative history "elevates intention as the touchstone, without placing any further parsing as to the copyrightable status of each individual component").

(113) See S. 1253, 101st Cong. (1989). The bill would have amended the [section] 101 definition of a joint work to read in part: "A `joint work' is a work prepared by two or more authors with the intention that their original contributions be merged into inseparable or interdependent parts of a unitary whole." See id. The proposed amendment also would have required a prior signed writing in order to create a joint work in the case of commissioned work. See id.

(114) See 135 Cong. Rec. S7251-02, 57,343 (1989) (explaining in a statement by Sen. Cochran introducing Senate Bill 1253 that, by the term "original," the bill means meeting the 'standard of originality established under the 1909 copyright statute").

(115) See S. 1253. The last action taken on Senate Bill 1253 was the conclusion of hearings of the Senate Subcommittee on Patents, Trademarks, and Copyrights on September 20, 1989.

(116) See 1 Nimmer & Nimmer, supra note 6, [section] 6.07, at 6-23 (stating that "[i]t would seem ... that each such contribution must, in any event, be more than de minimis"); Erickson v. Trinity Theatre, Inc., 13 F.3d 1061, 1069-70 (7th Cir. 1994) (stating that Nimmer "took the position that all that should be required to achieve joint author status is more than a de minimis contribution by each author," and rejecting this standard); BancTraining Video Sys. v. First Am. Corp., 21 U.S.P.Q.2d (BNA) 2014, 2017 n.7 (6th Cir. 1992) (stating that Nimmer "contends that ... anything beyond a de minimus [sic] contribution is sufficient for joint authorship," and rejecting this standard) (unpublished opinion); Balkin v. Wilson, 863 F. Supp. 523, 526 (W.D. Mich. 1994) (stating that "[t]he `de minimis' test merely `requires that "more than a word or line must be added by one who claims to be a joint author,'"" and rejecting this standard (quoting Erickson, 13 F.3d at 1070 (quoting 1 Nimmer & Nimmer, supra note 6, [section] 6.07, at 6-21))). This standard is referred to herein as the "more than de minimis" standard.

(117) See 1 Nimmer & Nimmer, supra note 6, [section] 6.07 at 6-23. ("It is not necessary that the respective contributions of several authors to a single work be equal, either quantitatively or qualitatively, in order to constitute such contributors as joint authors. It would seem, however, that each such contribution must, in any event, be more than de minimis.") (citations omitted).

(118) Id. (stating that a contribution limited to ideas could qualify the contributor as a joint author); see 17 U.S.C. [section] 102(b) (1994) (providing that copyright protection does not extend to any idea).

(119) See Community for Creative Non-Violence, 846 F.2d 1485, 1496 & n. 15 (D.C. Cir. 1988), aff'd on other grounds, 490 U.S. 730 (1989). The District of Columbia did not expressly endorse the proposition that a copyrightable contribution is not required, but merely suggested that this proposition might be correct. The court pointed out that CCNV had, in fact, contributed more than an "abstract idea." Id. at 1496-97.

(12) See, e.g., Erickson, 13 F.3d at 1070-71 (requiring that each contribution be "independently copyrightable" and stating that the "copyrightable subject matter test" has been adopted by a majority of courts that have considered the issue); BancTraining, 21 U.S.P.Q.2d (BNA) at 2017 (stating that an author must "`translate[] an idea into a fixed, tangible expression entitled to copyright protection'" (quoting Community for Creative Non-Violence, 490 U.S. at 742)); Childress v. Taylor, 945 F.2d 500, 506-07 (2d Cir. 1991) (stating that the Second Circuit requires a copyrightable contribution of all joint authors and that "[t]he case law supports a requirement of copyrightability [for] each contribution"); Ashton-Tate Corp. v. Ross, 916 F.2d 516, 521 (9th Cir. 1990) (stating that the Ninth Circuit "holds that joint authorship requires each author to make an independently copyrightable contribution"); M.G.B. Homes, Inc. v. Ameron Homes, Inc., 903 F.2d 1486, 1493 (11th Cir. 1990) (implying that the client's contribution of uncopyrightable ideas was at least part of the basis for the conclusion that the client was not a creator of the architectural plans); S.O.S., Inc. v. Payday, Inc., 886 F.2d 1081, 1087 (9th Cir. 1989) (stating that authorship requires translation of "an idea into a fixed, tangible expression entitled to copyright protection" (quoting Community for Creative Non-Violence, 490 U.S. at 737)); Design Options, Inc. v. Bellepointe, Inc., 940 F. Supp. 86, 90 (S.D.N.Y. 1996) (requiring that each contribution be "independently copyrightable"); Cabrera v. Teatro Del Sesenta, Inc., 914 F. Supp. 743, 765 (D.P.R. 1995) (requiring that "each collaborator's contribution must be a copyrightable work of authorship"); Beloit Corp. v. C3 Datatec, Inc., No. 93-C-447, 1995 U.S. Dist. LEXIS 16685, at *19 (E.D. Wis. Aug. 23, 1995) (requiring that the parties' contributions be "individually copyrightable"); Balkin, 863 F. Supp. at 527-28 (requiring that each joint author make a copyrightable contribution and stating that most courts have adopted the "copyrightable subject matter'" test); Napoli v. Sears, Roebuck & Co., 858 F. Supp. 101, 103 (N.D. Ill. 1994) (stating that the Seventh Circuit requires that each joint author make a contribution that "`represents original expression that could stand on its own as the subject matter of copyright'" (quoting Erickson, 13 F.3d at 1070-71)); Respect, Inc. v. Committee on the Status of Women, 815 F. Supp. 1112, 1120 & n.14 (N.D. Ill. 1993) (stating that the court "need not address the much-mooted question of whether the contribution of each joint author must be copyrightable" but that each "contributor must have contributed something original to be deemed an author"); Konigsberg Int'l, Inc. v. Rice, 22 U.S.P.Q.2d (BNA) 1876, 1877 (C.D. Cal. 1992) (stating that a co-author must make a contribution "that by itself is protectible under the Federal Copyright Act); see also 1 Goldstein, supra note 93, [sections] 4.2.1.2, at 4:13 (stating that each joint author must contribute "original expression that could stand on its own as the subject matter of copyright"); cf. Andrien v. Southern Ocean County Chamber of Commerce, 927 F.2d 132, 136 (3d Cir. 1991) (explicitly not deciding "whether each author of a joint work must make an independently copyrightable contribution"); Words & Data, Inc. v. GTE Communications Servs., Inc., 765 F. Supp. 570, 577 n.1 (W.D. Mo. 1991) (giving some credence to the view that a joint author's contribution need not be independently copyrightable).

(121) See Erickson, 13 F.3d at 1070-71 (arguing that use of the term "authors" in [sub-sections] 101 and 302(b) of the Copyright Act to refer to a joint author "suggests that each collaborator's contribution must be a copyrightable `work of authorship'"); Balkin, 863 F. Supp. at 527 (arguing that use of the term "author" in [sub-setions] 101 and 302 "suggests that each collaborator's contribution must be a copyrightable work of authorship'" (quoting Erickson, 13 F.3d at 1070-71)); Respect, 815 F. Supp. at 1120 (stating that "[i]t necessarily follows (from both constitutional as well as statutory sources) that a contributor must have contributed something original to be deemed an author); see also U.S. Const. art. 1, [sections] 8, cl. 8 (granting Congress the power [t]o promote the Progress of Science ... by securing for limited Times to Authors ... the exclusive Right to their ... Writings"); 17 U.S.C. [sub-sections] 101, 302(b) (1994) (providing that a "`joint work' is a work prepared by two or more authors" and that "[i]n the case of a joint work prepared by two or more authors" the term of copyright is the life of the last surviving author plus fifty years) (emphasis added).

(122) See Feist Publications, Inc. v. Rural Tel. Serv. Co., 499 U.S. 340, 346 (1991) (stating that "this Court defined the crucial terms `authors' and writings.' In so doing, the Court made it unmistakably clear that these terms presuppose a degree of originality.").

(123) See Childress, 945 F.2d at 506 (arguing that "[i]t has not been supposed that the statutory grant of `authorship' status to the employer of a work made for hire exceeds the Constitution, though the employer has shown skill only in selecting employees, not in creating protectable expression"); see also 17 U.S.C. [sections] 201(b) (1994) (providing that "[i]n the case of a work made for hire, the employer or other person for whom the work was prepared is considered the author for purposes of this title").

(124) For instance, it has been argued that a requirement of copyrightability is desirable because it is a predictable standard. See Erickson, 13 F.3d at 1071 (arguing that the copyrightability standard "enables parties to predict whether their contributions to a work will entitle them to copyright protection as a joint author"); Cabrera, 914 F. Supp. at 765 (arguing that the copyrightability test yields relatively certain answers'"); Balkin, 863 F. Supp. at 528 (same). This assertion is not beyond question. In the infringement context, for example, courts struggle regularly in determining whether a particular portion of a work, that portion copied by the defendant, is or is not protectible by copyright. See, e.g., Feist Publications, Inc., 499 U.S. at 364 finding white pages of phone book not copyrightable and reversing 10th Circuit); Lotus Dev. Corp. v. Borland Int'l, Inc., 49 F.3d 807, 813-19 (1st Cir. 1995) (finding a computer menu command hierarchy not copyrightable subject matter), aff'd mem., 116 S. Ct. 804 (1996); CCC Info. Servs., Inc. v. Maclean Hunter Mkt. Reports, Inc., 44 F.3d 61, 64-65, 68-73 (2d Cir. 1994) (reversing district court's finding that compilation of used car valuations is unprotectable and finding used car valuations copyrightable subject matter), cert. denied, 116 S. Ct. 721 (1995); Computer Assocs. Int'l, Inc. v. Altai, Inc., 982 F.2d 693, 706-15 (2d Cir. 1992) (adopting and applying a test for determining whether the structure of a computer program is an idea or expression); Nichols v. Universal Pictures Corp., 45 F.2d 119, 120 (2d Cir. 1930) (setting forth Learned Hand's abstractions test for determining the line between idea and expression), cert. denied, 282 U.S. 902 (1931); Runstadler Studios, Inc. v. MCM Ltd. Partnership, 768 F. Supp. 1292, 1297 (N.D. Ill. 1991) (discussing the difficulties of determining what constitutes protectible expression in the infringement context).

(125) See Fogerty v. Fantasy, Inc., 510 U.S. 517, 526 (1994) (stating that "[t]he primary objective of copyright is ... "[t]o promote the Progress of Science and useful Arts'"" and that copyright "`encourages others to build freely upon the ideas and information conveyed by a work'"); Feist Publications, Inc., 499 U.S. at 349-50 (explaining that "copyright ... encourages others to build freely upon the ideas and information conveyed by a work" and that "[t]his result is neither unfair nor unfortunate," but is "the means by which copyright advances the progress of science"); see also U.S. Const. art. I, [sections] 8, cl. 8 (granting to Congress the power "[t]o promote the Progress of Science" by adopting copyright legislation).

(126) See Erickson, 13 F.3d at 1070 (arguing that "[r]estrictions on an author's use of existing ideas in a work, such as the threat that accepting suggestions from another party might jeopardize the author's sole entitlement to a copyright, would hinder creativity"); Balkin, 863 F. Supp. at 527 (agreeing with Erickson that the possibility that borrowing ideas "`might jeopardize the author's sole entitlement to a copyright' could hinder creativity and the free exchange of ideas contrary to the purpose of the Copyright Act" (quoting Erickson, 13 F.3d at 1070)).

(127) Indeed, our desire that ideas (including facts, which are merely ideas we have accepted as true) be reused is the reason for our failure to protect ideas. See generally 17 U.S.C. [sections] 102(b) (1994) (providing that "[i]n no case does copyright protection ... extend to any idea, procedure, process, system, method of operation, concept, principle, or discovery"); Baker v. Selden, 101 U.S. 99, 102 (1879) (finding that "[t]o give to the author of the book an exclusive property in the art described therein ... is the province of letters-patent, not of copyright"). With respect to true ideas, that is, facts, it has been argued that the reason they are not protected is that the discoverer of a true idea has not originated, but merely discovered it, since it was true even before discovery. See, e.g., Feist Publications, Inc., 499 U.S. at 340 (explaining that facts are unprotected because "facts do not owe their origin to an act of authorship"); Miller v. Universal City Studios, Inc., 650 F.2d 1365, 1369 (5th Cir. 1981) (explaining that "since facts do not owe their origin to any individual, they may not be copyrighted"). However, we also refuse to protect ideas other than facts, such as fictional ideas, which do originate with the author. See Nichols, 45 F.2d at 122 (noting that a playwright's fictional ideas are not protected by copyright). The reason for our refusal to protect all ideas is that we want them freely available for reuse. Further, note that copyright requires originality not because we as a society value expression more than ideas, or for some metaphysical reason, but simply because we need something to protect, and all that is left after ideas are excluded, is expression. See Jaszi, supra note 45, at 302 (pointing out that "the distinction between uncreated `facts' and created `works'is purely fictitious ... [because] no so-called `fact' is interpretation-free").

(128) See supra notes 115-18 and accompanying text (discussing the more than de minimis standard).

(129) 499 U.S. 340 (1991).

(130) 130 See id. at 345, 358, 362 (describing the standard of originality as "some minimal degree of creativity" and "the modicum of creativity necessary"; and describing the standard as "not particularly stringent" and "low"); see also CCC Info. Servs., Inc. v. Maclean Hunter Mkt. Reports, Inc., 44 F.3d 61, 65 (2d Cir. 1994) (stating that the Supreme Court in Feist "repeatedly stressed that the required level of originality is minimal"), cert. denied, 116 S. Ct. 721 (1995); Kregos v. Associated Press, 937 F.2d 700, 703-05 (2d Cir. 1991) (stating that Feist requires "some minimal degree of creativity" and finding that Kregos' pitching form could not be held as a matter of law to lack the required originality).

(131) Feist, 499 U.S. at 363.

(132) See, e.g., Rubloff, Inc. v. Donahue, 31 U.S.P.Q.2D (BNA) 1046, 1049-50 (N.D. Ill. 1994) (stating that "the contributions of each author must be independently copyrightable" but finding that "[w]e are simply unwilling to find that tacking a one-and-one-half page statement on the front of a 546-page professional manual is sufficient"); Merchant v. Lymon, 828 F. Supp. 1048, 1058 (S.D.N.Y. 1993) (requiring a "copyrightable contribution" for joint authorship, but finding that a musician's contribution was not sufficient because it was "not a substantial contribution to the song"); Childress v. Taylor, 20 U.S.P.Q.2D (BNA) 1181, 1185 (S.D.N.Y.) (implying a requirement of a copyrightable contribution, but finding the actress's contribution to the play insufficient because "her efforts fall far short of [a] `substantial and significant contribution'" (quoting Picture Music, Inc. v. Bourne, Inc., 314 F. Supp. 640, 647 (S.D.N.Y. 1970))), aff'd, 945 F.2d 500 (2d Cir. 1991).

In addition, some courts which have not explicitly required a copyrightable contribution, have imposed a higher standard than copyrightability. See Segal v. Paramount Pictures, 841 F. Supp. 146, 151 (E.D. Pa. 1993) (requiring a "material contribution"), aff'd, 37 F.3d 1488 (3d Cir. 1994); Forward v. Thorogood, 758 F. Supp. 782, 784 (D. Mass. 1991) (requiring a "significant creative contribution), aff'd, 985 F.2d 604 (1st Cir. 1993); Eckert v. Hurley Chicago Co., 638 F. Supp. 699, 704 (N.D. Ill. 1986) (requiring a "significant" contribution).

(133) See 13 F.3d 1061, 1064 (7th Cir. 1994). The defendant theatre was found to have failed the copyrightable contribution requirement with regard to all three plays at issue in Erickson. See id. at 1072.

(134) Id. at 1064, 1072. Trinity cannot establish [the copyrightable contribution] requirement for any of the above works. The actors, on the whole, could not identify specific contributions that they had made to Ms. Erickson's works." Id. at 1072. Note that the Seventh Circuit found that the defendant theatre "has produced some evidence that there was the requisite intent for joint authorship with regard to Time Machine" because both parties initially attributed the script to both the playwright and the actress. Id.

(135) The improvisational process was described by the court as "a form of theatre in which there is no script," but in which "actors work with an idea and a loose structure to create a play." Id. at 1064.

(136) See 17 U.S.C. [sections] 101 (1994) (defining a joint work as "a work prepared by two or more authors with the intention that their contributions be merged into inseparable or interdependent parts of a unitary whole"). The House Report to the 1976 Act clarified that the parts contributed by joint authors "may be either `inseparable' (as in the case of a novel or painting) or `interdependent' (as in the case of a motion picture, opera, or the words and music of a song)." See H.R. Rep. No. 94-1476, at 120 (1976), reprinted in 1976 U.S.C.C.A.N. 5659, 5736. The 1960 study of copyright law performed in preparation for drafting the 1976 Act discussed as possible alternative approaches either requiring inseparable contributions or requiring collaboration of effort (though not necessarily simultaneous effort) toward a common design. See Subcomm. on Patents, Trademarks, and Copyrights, supra note 6, at 109-10. The latter approach was recommended by the Register and followed in the subsequent revision bill and in the Act as finally adopted. See 17 U.S.C. [sections] 101 (defining a joint work); Copyright Law Revision, pt. 5, 1964 Revision Bill with Discussions and Comments, 89th Cong., 1st Sess. 30 (Comm. Print 1965); Copyright Law Revision, 87th Cong., 1st Sess., Report of the Register of Copyright on the General Revision of the U.S. Copyright Law 156 (Comm. Print 1961). Note that the 1964 preliminary draft for the 1976 Act used the term "indistinguishable" in lieu of "inseparable." Copyright Law Revision, pt. 3, Preliminary Draft for Revised U.S. Copyright Law and Discussions and Comments on the Draft 15 n.20 (Comm. Print 1964).

(137) 863 F. Supp. 523 (W.D. Mich. 1994).

(138) See id. at 528.

(139) Id. at 524, 528.

(140) Id. at 524.

(141) 914 F. Supp. 743 (D.P.R. 1995).

(142) See id. at 766 (stating that "none of the defendants, except Molina, made a tangible contribution to the play").

(143) Id. at 755.

(144) Id. at 768. "Although the strict application of statutory requirements, [sic] may have produced what might be considered an unfair result, given the defendants [sic] valuable collaboration in the creation [of] the play, this Court is bound to follow and apply the law." Id. at 768-69.

(145) The court stated that "non tangible contributions, [sic] are not copyrightable," and accepted as "tangible" the contribution of another collaborator which was made on paper. Id. at 753, 766. The court had earlier stated that the four collaborators "provided phrases, lines for the dialogues of the characters and perhaps for the lyrics" but objected that they were not "capable of identifying specific portions of the script that could have been written by them." Id. at 759-60. Thus, there is some possibility that what the court meant by "tangible" was fixed and identifiable.

(146) See, e.g., Aerospace Servs. Int'l v. LPA Group, Inc., 57 F.3d 1002, 1004 (11th Cir. 1995) affirming finding of no joint authorship and of infringement); Erickson v. Trinity Theatre, Inc., 13 F.3d 1061, 1073 (7th Cir. 1994) (affirming grant of preliminary injunction against infringement based on likelihood that works are not joint); Childress v. Taylor, 945 F.2d 500, 509 (2d Cir. 1991) (affirming summary judgment for plaintiff based on finding of no joint authorship and of infringement); S.O.S., Inc. v. Payday, Inc., 886 F.2d 1081, 1087 (9th Cir. 1989) (finding no joint authorship and declining to affirm district court's grant of summary judgment on that basis); Weissmann v. Freeman, 868 F.2d 1313, 1320 (2d Cir.) (reversing the district court and finding no joint authorship and infringement), cert. denied, 493 U.S. 883 (1989); Steve Altman Photography v. United States, 18 Cl. Ct. 267, 281-82 (1989) (finding no joint authorship and infringement); Cabrera, 914 F. Supp. at 745, 768-69 (finding no joint authorship by defendants where plaintiff claimed infringement); Balkin v. Wilson, 863 F. Supp. 523, 528 (W.D. Mich. 1994) (finding no joint authorship and infringement); Napoli v. Sears, Roebuck & Co., 858 F. Supp. 101, 103-04 (N.D. Ill. 1994) (granting leave for plaintiff to file renewed motion for summary judgment on infringement claim where defendant raised defense of joint authorship); Respect, Inc. v. Committee on the Status of Women, 815 F. Supp. 1112, 1119-21 (N.D. Ill. 1993) (finding no joint authorship and infringement); Words & Data, Inc. v. GTE Communications Servs., Inc., 765 F. Supp. 570, 572-73, 579 (W.D. Mo. 1991) (finding joint authorship and consequent absence of liability for infringement); Fisher v. Klein, 16 U.S.P.Q.2D (BNA) 1795, 1799 (S.D.N.Y. 1990) (finding defendant joint author and therefore not liable for infringement); Morita v. Omni Publications Int'l, Ltd., 741 F. Supp. 1107, 1113 (S.D.N.Y. 1990) (denying defendant's motion for summary judgment made on the ground that work at issue was a joint work); Geshwind v. Garrick, 734 F. Supp. 644, 650-51 (S.D.N.Y. 1990) (finding defendant to be either the sole author or a joint author and therefore not liable for infringement), aff'd, 927 F.2d 594 (2d Cir.), cert. denied, 502 U.S. 811 (1991); Strauss v. Hearst Corp., No. 85 Civ. 10017 (CSH), 1988 WL 18932, at *6 (S.D.N.Y. Feb. 19, 1988) finding defendant to be a joint author and therefore not liable for infringement); Eckert v. Hurley Chicago Co., 638 F. Supp. 699, 704 (N.D. Ill. 1986) (denying defendant's motion for summary judgment made on grounds that defendant was joint author and therefore not liable for infringement); Whelan Assocs., Inc. v. Jaslow Dental Lab., Inc., 609 F. Supp. 1307, 1318-19, 1322 (E.D. Pa. 1985) (finding defendant was not a joint author and finding infringement); Aitken, Hazen, Hoffman, Miller, P.C. v. Empire Constr. Co., 542 F. Supp. 252, 259 (D. Neb. 1982) (finding defendant was not a joint author and liable for infringement).

(147) See 1 Goldstein, supra note 93, [sections] 4.2.2, at 4:20 (explaining that "each copyright co-owner is entitled to exploit the copyright himself or to license others to do so"); 1 Nimmer & Nimmer, supra note 6, [section] 6.10, at 6-30 (stating that "a joint owner, may, without obtaining the consent of the other joint owners, either exploit the work himself, or grant a nonexclusive license to third parties").

(148) For the view that current copyright protection is too strong, see, for example, James Boyle, Shamans, Software, and Spleen x, 19, 132, 168, 172 (1996) (arguing that copyrights are overprotected and that the importance of the public domain is ignored; suggesting 20 year copyright protection with "a broadly defined fair use protection"); Jessica Litman, The Public Domain, 39 Emory L.J. 965, 969 (1990) (recommending a broad definition of the public domain).

(149) The term "serial collaborations" was coined by Peter Jaszi, who defined serial collaborations as "works resulting from successive elaborations of an idea or text by a series of creative workers, occurring perhaps over years or decades." Jaszi, supra note 45, at 304.

(150) See supra notes 69-109 and accompanying text (discussing the courts' requirement of intent to be joint authors).

(151) The Internet is a system whereby a user with his or her computer connects either directly, or through intermediary computers to a remote computer that acts as a "server," providing access to a wide variety of information in textual, audio or image form. See Information Infrastructure Task Force, Intellectual Property and the National Information Infrastructure: The Report of the Working Group on Intellectual Property Rights 179-82 (1995) (describing the Internet and noting that "[i]n the past few years, there has been an explosion in the popularity and volume of use of the Internet").

(152) See supra notes 45-51 and 61-64 and accompanying text (discussing the courts' hostility to joint works and the courts' use of conclusory findings

(153) See supra notes 52-60 and accompanying text (discussing the courts' subordination of joint work doctrine to work-made-for-hire doctrine).

(154) See supra notes 65-68 and 110-44 and accompanying text (discussing the courts' requirement of independently copyrightable contributions).

(155) I exclude from this discussion cases in which a work made for hire is found, since in such cases, courts do not reach the issue of joint authorship. See supra notes 52-60 and accompanying text (discussing the courts' subordination of joint work doctrine to work-made-for-hire doctrine).

(156) Consider, for example, the two Childress v. Taylor decisions, neither of which contains any suggestion that if the play at issue was not a joint work, there was a possibility that the playwright's play might be an infringing derivative work due to use of the actress' material. See Childress v. Taylor, 945 F.2d 500 (2d Cir. 1991); Childress v. Taylor, 20 U.S.P.Q.2d (BNA) 1181 (S.D.N.Y. 1990), aff'd, 945 F.2d 500 (2d Cir. 1991). The Second Circuit expressly did not decide whether the actress's contributions were copyrightable. See Childress, 945 F.2d at 509; see also Eckert v. Hurley Chicago Co., 638 F. Supp. 699, 704 (N.D. IIl. 1986) (denying defendant's motion for summary judgment where motion was based on claim of joint authorship and not indicating the potential for a counterclaim by defendant for use of its photograph).

(157) See supra notes 65-66 and 69-80 and accompanying text (explaining that the statute requires only intent for contributions to merge).

(158) See supra notes 74-76 and accompanying text (discussing evidence of intent to be joint authors).

(159) See 17 U.S.C. [sections] 106(2) (1994) (granting the copyright owner the exclusive right to prepare derivative works); see also id. [sections] 101 (defining a derivative work as 'a work based upon one or more preexisting works, such as [examples omitted] ... or any other form in which a work may be recast, transformed, or adapted"); see, e.g., id. [sections] 107 (permitting fair use of protected material); id. [sections] 117(1) (permitting copies and adaptations of computer programs in certain circumstances).

(160) Note that the Copyright Act permits a non-exclusive license to be created without a writing signed by the copyright owner. See 17 U.S.C. [sections] 204(a) (1994) (requiring a writing signed by the copyright owner for a 'transfer of copyright ownership"); id. [sections] 101 (excluding a nonexclusive license from the definition of the term "transfer of copyright ownership").

(161) See Louise Kehoe, The Internet, A Business Ethic Takes Over, Fin. Times, Oct. 3, 1995, at XXII (reporting that "[f]rom 1990 to mid-1995, the number of computers connected to the Internet rose from 130,000 to 4.8 m[illion]" and that "more than 50 m[illion] people across the world" now use the Internet); Kimberly Peterson, Internet a Puzzler to Some, But It Keeps Growing, San Diego Union-Trib., Aug. 20, 1995, at 5 (reporting that an estimated 30 million people use the Internet worldwide and that one million people begin use each month).

(162) See Statement of the Association of American Publishers on the NII Copyright Protection Act of 1995 Before the House Subcomm. on Courts and Intellectual Property, 104th Cong. (Feb. 8, 1996) (statement of Richard Robinson, Pres., CEO of the Association of American Publishers (AAP)), available in 1996 WL 50046 (expressing concern at manufacturers' 'inviting ... the indiscriminate digitization, modification and transmission of materials" and at the "ease and speed of perfect reproduction, broad dissemination and undisclosed manipulation of works on the NII"). With respect to ease of adaptation, compare the transmission of digitized material over the Internet to distribution of hard copies by the print media or by the recording industry. See Message from Jessica Litman, [is less than]cni-copyright@cni.org[is greater than] (Dec. 7, 1994) (stating that "the ease with which electronic texts may be altered has many people concerned with finding ways to detect and prevent it") (copy on file with Albany Law Review).

(163) See Jaszi, supra note 45, at 319 (describing "the conditions of the Internet environment today [as] resembl[ing] those which prevailed at other moments of polymorphous collaboration, unrestrained plagiarism, and extraordinary cultural productivity-such as the Elizabethan stage or Hollywood before 1915'); Jean Erhard, Digital Rights,Internet World, Nov./Dec. 1994, at 79, 80 (reporting that "a large part of Internet culture is based on the free flow of information"); Ruth Pagell, Reaching For the Bottle, Not the Glass; The End-user Factor of Electronic Full Text, Database, Oct. 1, 1993, at 8 (reporting that publishers "worry about the Internet and the free movement of documents around the world with no regard for copyright").

(164) See, e.g., Sega Enters., Ltd. v. Maphia, 948 F. Supp. 923, 933, 941 (N.D. Cal. 1996) (granting a permanent injunction against a bulletin board operator where users uploaded to and downloaded from bulletin board video games, based in part on a finding of contributory copyright infringement); Religious Tech. Ctr. v. Netcom On-Line Communication Servs., Inc., 907 F. Supp. 1361, 1383 (N.D. Cal. 1995) (denying Internet access provider's motion for summary judgment on claim of contributory infringement and denying bulletin board operator's motion for judgment on the pleadings on claim of contributory infringement, but denying plaintiff s motion for preliminary injunction against foregoing defendants where user uploaded works of L. Ron Hubbard); Central Point Software, Inc., v. Nugent, 903 F. Supp. 1057, 1060 (E.D. Tex. 1995) (granting motion for summary judgment against bulletin board operator for copyright infringement by reproduction where computer programs were posted on bulletin board service); Playboy Enters., Inc. v. Frena, 839 F. Supp. 1552, 1556-57 (M.D. Fla. 1993) (granting summary judgment to magazine against operator of subscription bulletin board for copyright infringement by public display where subscribers uploaded to and downloaded from bulletin board photographs, and noting that the defendant's actions "implicated" the distribution right).

In addition, there have been many incidents of alleged copyright infringement via the Internet which have not resulted in a published judicial opinion. See, e.g., Texas v. West Pub. Co., 882 F.2d 171, 174 n.5 (5th Cir. 1989) (reporting that West sued a legal publisher due to the publisher's plan to market an electronic version of Texas Code Service containing material allegedly protected by West's copyright); Frank Music Corp. v. CompuServe Inc., 93 Civ. 8253 (S.D.N.Y. filed 1993) (claiming in class action suit infringement of copyright when subscribers transmit songs via bulletin board); 51 Pat. Tm. & Copyr. J. (BNA) 48 (Nov. 9, 1995) (announcing settlement of Frank Music Corp. v. CompuServe Inc.); Joe Abernathy, Federal Agents Raid Dorm, Seize Computer Equipment, Hous. Chron., Dec. 17, 1992, at 40 (reporting that secret service agents seized computer equipment of students who allegedly received software without authorization via the Internet); Barbara Carton, Man Charged In Software Piracy, Boston Globe, Sept. 1, 1994, at 41 (reporting that Software Publishers Association brought suit against a bulletin board operator for copyright infringement based on transmission of programs to subscribers); Paul Karon, The Cutting Edge: Computing/Technology/Innovation Intellectual Properties: On-Line Services Push the Envelope on Copyright Issue, L.A. Times, May 4, 1994, at 4 (reporting that Paramount Communications Inc. complained that America On-Line was transmitting unauthorized images and sounds from the "Star Trek" series); Elizabeth Lee & Art Kramer, Netwatch the AJC's Daily Online Guide: The Political Process Finds Its Way Online, Atlanta J. & Const., Oct. 16, 1996, at C8 (reporting that a lyrics server that permitted users to search for the words of thousands of songs was shut down following claims of copyright infringement); Lee Lester, CAAST Plans to Get Tough With Software Pirates Through Campaign That Would Include Civil Action, Computing Can., Jan. 4, 1995, at 8 (reporting that Software Publishers Association was considering proceedings for copyright infringement against a bulletin board system in Ohio which allegedly transmitted software without authorization to more than 14,000 subscribers); Pair Settles Game Suit With Sega, Austin Am.-Statesman, Dec. 7, 1995, at C2 (reporting that Sega received a settlement fee of $600,000 for a claim of copyright infringement based on uploading Sega games onto bulletin board service); SPA Filess Copyright Suits Against ISPs, Individual End Users, EDP Weekly, Oct. 14, 1996, at 7 (reporting that the Software Publishers Association announced the filing of five suits for copyright infringement on the Internet); Sandra Sugawara, What's Out of Line, When On Line? White House Report Says Copying of Computer Service Files May Be Ilegal, Wash. Post, July 7, 1994, at D9 (reporting that Knight Ridder removed humorist's column from an on-line service because subscribers were copying the columm and further transmitting it via e-mail); Junda Woo & Jared Sandberg, Copyright Law Is Easy To Break On the Internet, Hard to Enforce, Wall St. J., Oct. 10, 1994, at B6 (reporting that Walt Disney Co. persuaded commercial on-line services not to transmit unauthorized images of its characters); 35 Comm. ACM 7 (1992) (reporting that a suit by Playboy Enters., Inc. against an on-line service for allegedly transmitting photos from Playboy magazines through a bulletin board was settled for $500,000).

(165) The Working Group on Intellectual Property Rights, chaired by Commissioner of Patents and Trademarks, Bruce Lehman, was established as a subunit of the Information Infrastructure Task Force, formed by President Clinton in 1993. See Information Infrastructure Task Force, supra note 150, at 1-2. The Working Group issued its final report in September of 1995, setting forth its analysis of the intellectual property implications of the National Information Infrastructure (for which the current Internet was used as the prototype) and its recommendations for changes to intellectual property law. See id. at 2, 178, 211-38. Among other changes, the Working Group recommended amending [sections] 106(3) of the Copyright Act to clarify that distribution of copies can occur by transmission, as via the Internet. See id. at 213-17, app. 1, at 2. The proposed amendment would thus provide that the exclusive rights of a copyright owner include the right O distribute copies or phonorecords of the copyrighted work to the public ... by transmission." Id. at app. 2, at 1; see also id. at app. 1, at 2. This recommendations was embodied in bills introduced in the Senate and House of Representatives in September of 1995. See S. 1284, 104th Cong. [sections] 2(a) (1995); H.R. 2441, 104th Cong. [sections] 2(a) (1995). These bills were not adopted prior to adjournment of the 104th Congress. Protection of copyrights via the Internet would be enhanced by a bill introduced in July of 1997 which would prohibit the circumvention of copyright protection systems. See H.R. 2281, 105th Cong. [sections] 1201 (1997). The bill was intended to implement compliance with the World Intellectual Property Organization [hereinafter WIPO] Copyright Treaty, adopted by delegates to the WIPO conference in December of 1996. See Hearings on H.R. 2281 and H.R. 2180 Before the Subcomm. on Courts and Intellectual Property, 105th Cong. (Sept. 16, 1997) (statement of Hon. Howard Coble, Chairman), available in 1997 WL 14150810. Another bill, also introduced in July of 1997, would limit the copyright infringement liability of on-line service providers under certain circumstances. See H.R. 2180, 105th Cong. (1997).

(166) See Graceland Lawyers Unplug Free Cybertours, Charlotte Observer, Nov. 26, 1994, at C3. Another example involved an individual who transmitted via the Internet photographs of himself with text. A second author then transmitted a parody of the first author's text together with links to the pictures. See Message from Paul Jones, [is less than]cni-copyright@cni.org[is greater than] (Jan. 20, 1995) (describing the incident) (copy on file with Albany Law Review). Aside from the open question whether providing links to material, that is the location of material on the Internet, is infringement by creation of a derivative work by changing the context, cf. Mirage Editions, Inc. v. Albuquerque A.R.T. Co., 856 F.2d 1341 (9th Cir. 1988), cert. denied, 489 U.S. 1018 (1989), the textual parody is a serial collaboration. Assuming sufficient use of material and the absence of statutory exemptions, the parody is either an infringing or licensed derivative work, or a joint work.

(167) For a definition on of the "listserv", see supra note 1.

(168) I selected dinosaurs, music research, nerdosh, and weird-L from a list of lists compiled and made available by Stephanie da Silva. See [is less than]<arielle@taronga.com[is greater than] (copy on file with author). Cni-copyright describes its purpose as being "to give those who ask, answer, and discuss copyright questions of any type a forum for discussion." Introductory Message for Cni-copyright, [is less than]listproc@cni.org[is greater than] (Nov. 7, 1994) (copy on file with author). The self-descriptions of the remaining four listservs as recorded in the list of lists are as follows: 1) dinosaur: "This list has replaced dinasaur@donald.wichitaks.ncr.com.... We also discuss flying & swimming archosaurs and other animals of that period as well as earlier and later periods. Most participants are not paleontologists but some are extremely well-versed." [is less than]http://www.listproc@lepomis.psych.upenn.edu[is greater than] (copy on file with author). 2) music research: "Initially the list was established for people whose chief interests concern computers and their applications to music representation systems, information retrieval systems for musical [sic] scores, music printing, music analysis, musicology and ethnomusicology and tertiary music education." [is less than]http://www.comlab.ox.ac.uk[is greater than] (copy on file with author). 3) nerdosh: "The origins of NERDNOSH were in the lowlands of the Red River years ago, with the water moccasins along the brakes and the mosquitoes swarming and the River rising and the wolves howling in the distance as the sun dropped, and a group of us were swapping stories and the rains came and one of us said, wouldn't this be a great idea without the snakes and the mosquitoes and the high water and the wolves and the rain? Here it is. A virtual campfire gathering of storytellers. Bring us your tired yarns and your family fables and your journals of yesterday and your imprints on tomorrow." [is less than]http://www.netins.net/showcase/ dmorris/nerdnosh.html[is greater than] (copy on file with author). 4) weird-L: "Disturbing and potentially offensive prose or poetry. The list is moderated and submissions may be edited." [is less than]listserv@brownvm.brown.edu[is greater than] (copy on file with author).

(169) The search terms employed to search the archives were: consent, permission, re-post, repost, copyright, copyrighted, forwarded, free, freely, copy, copying, permit, forward, circulate, circulated, attribute, attribution, reprint, reprinted, redistribute, redistributed. For the addresses to the archives, see supra note 168.

(170) See Jessica Litman, The Exclusive Right to Read, 13 Cardozo Arts & Ent. L.J. 29, 48 (1994) (stating that much of the activity on the net takes place on the mistaken assumption that any material on the Internet is free from copyright unless expressly declared to be otherwise"); Protecting Intellectual-property Rights in Cyberspace, Seattle Times, Oct. 30, 1995, at E3 (discussing "misconceptions about intellectual-property rights and the Internet' and stating that "some mistakenly believe that if an author posts an article on the Internet, it is in the public domain and thereby not protectable"); Message from Brent Sessions, [is less than]cni-copyright@cni.org[is greater than] (Mar. 30, 1995) (stating, "[s]eems to me that if you post your opinion or some other personal response to a public listserv that ANYONE can join, it is public domain") (copy on file with Albany Law Review).

(171) See, e.g., Trotter Hardy, The Proper Legal Regime for "Cyberspace," 55 U. Pitt. L. Rev. 993, 997 (1994) (reporting that "[c]opying and forwarding mail is a common practice in cyberspace" in the context of forwarding an e-mail message to a listserv); Message from Mary Brandt Jensen, [is less than]cni-copyright@cni.org[is greater than] (Apr. 6, 1995) (opining that "you can reasonably expect that the message [i.e., a message to a listserv] will be duplicated in part in order to respond to it") (copy on file with Albany

(172) See 1 Nimmer & Nimmer, supra note 6, & 6.10, at 6-31 (stating that a "joint owner may exploit the subject work, and must correspondingly account to his fellow joint owners for such uses").

(173) See supra notes 65-109 and accompanying text (discussing the intent required for creation of a joint work).

(174) See Information Infrastructure Task Force, supra note 150, at 16 (reporting that waivers of copyright "are not uncommon on the Internet").

(175) The waivers in the text appeared on cni-copyright on February 7, 1994 and Apr. 6, 1995, respectively. See cni-copyright (visited Feb. 7, 1994 & Apr. 6, 1995) <cni-copyright@cni.org> (copies of all messages from the five listservs containing express language quoted in the text are on file with author). In order to discuss a wider variety of express language, I have included several examples of such language from 1995.

(176) Prior to March 1, 1989, the effective date of the Berne Convention Implementation Act, material could be placed, at least provisionally, in the public domain by publication without copyright notice. See Berne Convention Implementation Act of 1988, Pub. L. No. 100-568, 102 Stat. 2853 (1988); 1 Goldstein, supra note 93, [sections] 3.0, at 3:3, [sections] 3.3, at 3:30, [sections] 3.4 at 3:38-39 (explaining that publication without copyright notice placed work in the public domain unless the omission of notice was cured). Under current law, copyright notice upon publication is not mandatory, with the result that express language must be used to place material otherwise protected by copyright in the public domain. See 17 U.S.C. [subsection] 401(a), 402(a), 405(a) (1994) (providing that copyright notice "may" be placed on publicly distributed copies and phonorecords, and limiting the loss of copyright protection for omission of notice to copies and phonorecords publicly distributed before March 1, 1989).

(177) See cni-copyright, supra note 174.

(178) Also contributing to the ambiguity created by this addendum is the fact that the permission does not explicitly cover all of the copyright owner's rights. For example, does it include permission to make derivative works? See 17 U.S.C. [sections] 106(2) (1994). If not, then the copyright owner retains some rights and the waiver is not complete.

(179) The language quoted in the text appeared on <cni-copyright@cni.org> on December 2, 1994, April 7, 1995, December 8, 1994, and on <http://www.netins.net/showcase/ dmorris/nerdnosh.html> on January 5, 1994, respectively. The following language more clearly reveals lack of intent for modification, but is still not entirely free from ambiguity: "The author gives permission to any group or individual wishing to distribute this article, so long as proper credit is given and the article is reproduced in its entirety." Lepomis' Home Page (visited May 1994) <http://www.listproc@lepomis.psych.upenn.edu>. Addition of the words, "without modification," after the word, "entirety," would make it clear that reproduction of the entire work with added matter falls outside the scope of the author's intent.

(180) This language appeared on <cni-copyright@cni.org> on November 29, 1994.

(181) The introduction of the nerdnosh list archive contained as of 1995 the following: "NERDNOSH (tm) material presented here is copyrighted, and as such may not be reproduced in any form for any purpose except by the author herself without the express permission of Yucca Flats, LTD, producers of Nerdnosh." <http://www.netins.net/showcase/dmorris/ nerdnosh.html> (copy on file with author).

(182) See supra notes 69-109 and accompanying text (discussing the intent requirement for creation of a joint work).
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Author:Lape, Laura G.
Publication:Albany Law Review
Date:Sep 22, 1997
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