tag:blogger.com,1999:blog-12505562.post4796891676250909019..comments2024-03-15T11:42:21.265-04:00Comments on The Patry Copyright Blog: Copyright in Outside Counsel's WorkWilliam Patryhttp://www.blogger.com/profile/12987498082479617363noreply@blogger.comBlogger5125tag:blogger.com,1999:blog-12505562.post-32571019546481341972007-05-08T12:17:00.000-04:002007-05-08T12:17:00.000-04:00See footnote 6, although this doesn't answer the q...See footnote 6, although this doesn't answer the question about the agreement being a derivative work.William Patryhttps://www.blogger.com/profile/12987498082479617363noreply@blogger.comtag:blogger.com,1999:blog-12505562.post-71017882104151101092007-05-08T12:15:00.000-04:002007-05-08T12:15:00.000-04:00AC3 says:Its hard to tell from the post but it see...AC3 says:<BR/>Its hard to tell from the post but it seems that the rental agreement may not have been written from scratch by the outside council. It seems entirely plausible that some or most of the contract was boilerplate which would clearly not be copyright by the client.Anonymousnoreply@blogger.comtag:blogger.com,1999:blog-12505562.post-46831294673981021002007-05-08T10:24:00.000-04:002007-05-08T10:24:00.000-04:00Indeed, LBK, I saw no such evidence either of an i...Indeed, LBK, I saw no such evidence either of an intent for joint authorship. On the written agreement and work for hire, such a work wouldn't qualify under prong two anyway; it is also difficult to see how any ordinary attonrey-client relationship would qualify under prong 1.William Patryhttps://www.blogger.com/profile/12987498082479617363noreply@blogger.comtag:blogger.com,1999:blog-12505562.post-56300702971672789672007-05-08T10:16:00.000-04:002007-05-08T10:16:00.000-04:00Why didn't Plaintiff argue work for hire? Probabl...Why didn't Plaintiff argue work for hire? Probably because there was no written WfH agreement. See subsection (2) of the definition of "Work for Hire" in 17 USC 101. WfH for non-employees is a bright line test -- either you have a written agreement that satisfies the statute or you don't.<BR/><BR/>On the merits, I think the Fed Circuit botched this one. One of the critical (and oft-overlooked) elements required for joint authorship is that there was an agreement between the authors to be joint authors -- it's not sufficient to just prove individual contributions. In the usual commissioned work situation -- where the client provides ideas, suggestions, edits, and generally directs the photographer, architect, or other artisan -- the lack of proof of any evidence of an agreement to be joint authors usually dooms the joint authorship claim. <BR/><BR/>Maybe I missed something, but I saw no indication from the opinion that there was any affirmative evidence of any such agreement (indeed, I'd be surprised if there was any under this fact pattern). Absent proof of this essential element of the affirmative defense, summary judgment for the copyright owner was appropriate. <BR/><BR/>LKB in HoustonAnonymousnoreply@blogger.comtag:blogger.com,1999:blog-12505562.post-68932914071065301622007-05-08T08:41:00.000-04:002007-05-08T08:41:00.000-04:00Wow, what a lesson learned! I am not sure why cou...Wow, what a lesson learned! I am not sure why counsel for the Plaintiff did not argue work for hire, in the beginning of this lawsuit. Any idea why they failed to do so? <BR/><BR/>Now they have to go back on remand and try and produce testimony from employees regarding whether their contributions were sufficiently significant to find them joint authors. An uphill battle, at best!Anonymousnoreply@blogger.com