Tuesday, March 20, 2007

Contractual Authorship

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,


Anonymous said...

I think that architect-client cases are on of the few types of cases which don't accord with the public's perception of who should own what.

By way of example, I had a boss once--an ip attorney no less--that worked with an architect (and paid a significant amount to) to design his one-of-a-kind dream home. Not less than a month after getting the blueprints finalized, he found out that the architect slightly modified the plans for a parade-of-homes home built several miles away.

I bet that if you asked the average joe on the street, their reaction is that the client ought to own the plans (and presumably the copyright) in that situation. But, alas, the default position (that is without an agreement to the contrary) is exactly the opposite. For the life of me, I have actually never understood a good policy reason for this default position. If you're paying someone to create something for you, and for that matter if you've fully subsidized the cost of doing so, why shouldn't the default rule be that you own it?

William Patry said...

I think there are other examples, wedding photographs being one. Non-authors who pay for the cost of creating can own the copyright by assignment, but i doubt few architects or photographers would agree to such an assingment.

Anonymous said...

Actually, a number of wedding photographers are moving to a per hour work for hire contract where the photographer simply gives the bride and groom a CD of all of the images.

Some estimate that up to 40% of the wedding photography market is operating this way. It is a big shift for the wedding photography business and seems to be occurring as one would expect more among younger photographers and couples than among older photographers and couples.

I don't know about the architecture world however, but unless it's a fancy house there isn't too much obvious benefit to the average Joe in owning the copyright in the plans to your house. While you might want to reprint your wedding photographs in the future, do you really want to rebuild another copy of your house even if you could afford it?