A recent run-of-the mill architectural case, Warren Freedenfield Associates, Inc. v. McTigue, 2007 WL 757874 (D. Mass. March 9, 2007), nevertheless raises some fundamental questions about how authorship is established. The dispute was run-of-the mill in being between the architect and the client. The parties used a standard architectural form, which provided: "the Architect shall be deemed the author of these documents and shall retain all common law, statutory and other reserved rights, including the copyright."
As a fact matter - and in the case itself -- it is very likely that the architect is the author because of the nature of the contributions he or she makes. Clients may provide concepts and ideas, but it would be rare indeed for the client to be the sole author: why hire an architect then? Conversely, saying in a contract that one party is the author is ineffective by itself: a contract cannot establish authorship, only ownership (via transfer). Either someone is or isn't an author, a determination made by examining the nature of the contribution.
When it comes to joint authorship, though, the situation is different. In the Freedenfeld case, the client argued that it was a joint author. There are isolated cases, where a client contributes enough expression - in the form of drawings - to qualify as a joint author if the element of intent is there. And it is here that the Freedenfeld court rightly relied on the contractual provision as a strong sign of the lack of an intent by the architect to be a joint author.
What one does with the contributions of a non-joint author is problematic and was left somewhat unresolved in the Second Circuit's Thomson v. Larson case. In most cases there will be an implied license for the immediate use, but how far beyond that is uncharted territory,