IPSC Panel 14 – Copyright Authorship & Ownership

Timothy J. McFarlin, A Copyright Ignored? Mark Twain, Mary Ann Cord, and the Meaning of Authorship

Twain used the story of formerly enslaved cook Mary Ann Cord, changing her name to Aunt Rachel. Told story “repeated word for word as I heard it.” Letter: “I have not the altered the old colored woman’s story except to begin it at the beginning, instead of the middle, as she did—and traveled both ways.” He said it had no humor in it (recounted her history, including seven children who were separated from her by enslavers). He also sets the scene, so 20% is that, but 80% is her words as he remembered them.

Taking him at his word: Did Twain infringe her common-law copyright? Would that still exist today? [Federal preemption.] Atlantic Monthly first published Twain’s work, credited to him alone, in 1874. Searching for any surviving descendants.

Cord told Twain the story in NY, which is governed by Hemingway’s Estate v. Random House (NY Ct App 1968). Twain thought he should have ownership of his lectures—“my lecture was my property.”

No evidence of express consent; is telling it in front of him implied consent for him to publish it in his name w/no payment? Seems unlikely. Twain gave her a signed & inscribed copy after publication, which descendants donated to UMd decades back. Inscription: “to Aunty Cord with his kindest regards,” says it’s a “libelous portrait” but well meant; perhaps referring to stereotypical illustration that accompanied publication.

If no consent, then arguably no fixation, then no federal preemption under 301(b). Adverse possession doesn’t fit b/c of lack of exclusivity. Statute of limitations/laches has been watered down federally by Petrella, but perhaps NY state court would apply it more strictly—or could accept a claim for equitable relief, like attribution, going forward. Unsettled; hard to say Cord & family intentionally or even negligently sat on their rights. Did Twain make fair use? There’s some transformation in organization; used entire work/market substitute so Cord wouldn’t be able to sell her narrative a publisher. If a household worker had listened to Twain tell a story and published it, would we think it was fair use?

Crux: was Cord an author? Fits into “slave narrative” genre, which influenced Twain. Twain called it “a curiously strong piece of literary work to come unpremeditated from lips untrained in the literary art.”

Betsy Rosenblatt: 2 questions worth separating—is Cord an author and is Twain an author are different important questions. They’re both authors. What do we do with that? It’s not clear that giving Cord’s estate ownership would be social justice, but that’s a question worth asking.

Shani Shisha, Copyright Pragmatism

Formalities provoked a strong pragmatic reaction from courts. Prototypical 19^th case: Publishing agreement is silent on ownership; publisher complies w/formalities and author doesn’t. The choice is invalidate the © for failure to comply with formalities, or hold that author implicitly assigned the © to the publisher, saving the © in its hands. Problem: statute appeared to require written assignments, recorded in clerk’s office. Determined to prevent forfeiture, courts found—often on very thin evidence—that authors implicitly transferred rights, defying statute. Pulte v. Derby: Author didn’t want a 3d edition published; publisher said it was the owner, court agreed because, though the agreement was silent, without publisher’s efforts to comply, the © would have been abandoned to public. Publisher thus got the © and the evidence of that was published “under the eye of the complainant. He, therefore, sanctioned it.”

There’s a parallel line of cases reaching the opposite conclusion when compliance w/formalities isn’t at issue. In some contexts (e.g., paintings), courts effectively flip the default; there’s an assumption of assignment unless the parties agreed otherwise. SCt provides an ex post rationalization: before the author registers the rights, the author doesn’t have a ©, so the statutory requirement of written assignment doesn’t apply before registration.

To prevent forfeiture, some courts create equitable co-ownership: Registrant is the formal proprietor, but author is equitable co-owner and there’s a constructive trust w/registrant trustee on behalf of author.

What should we make of this? First, tradition of aggressive pragmatism turning almost entirely on forfeiture; courts laundered facts and defied statutory directives. Also, issue of doctrinal drift—rules on implicit transfer grew from this specific context. And we should be talking more about implied permission, not © ownership per se. The court understood that what the author meant to do was to give the publisher an implied license to use/distribute work; given the risk of forfeiture, they had to frame these facts as an issue of assignment.

Zvi Rosen: Wheaton v. Peters starts out very formalist—you didn’t separately deliver the copies that you delivered to the gov’t, so no protection. Signed letter from Librarian of Congress wasn’t enough: very formalist. 1834 Act didn’t make written assignment mandatory, just rules for bona fide purchases. These aren’t copyright cases, but common law copyright cases—courts are using assignment rules b/c they think they aren’t statutory cases. So you should go more into common law/statutory distinction. Copyright Office had a report on contributions to periodicals in the 1960s—there was an old case saying that there was no ©, which made everyone unhappy.

A: my point is exactly that: that these cases are about contracts/implied consent. A lot of them involve courts thinking about statutory copyrights. Courts look to the statute, understand the statute to be controlling, but still do this. Definitely true that they weren’t entirely pragmatic. Sometimes formalities compelled forfeiture. As for 1834 Act, it did say an unrecorded assignment was fraudulent and void—and these were read into the contracts by the courts ex post. [Rosen says: void against subsequent BFP, not void in general]

Michal Shur-Ofry: do we see a larger trend of shift between pragmatism and formalism in other areas of the common law?

Sarah Polcz, Coauthorship for Minor Contributors: Empirical Evidence of Efficiency

Focusing on songs. Rules about what counts as coauthorship used to be good for songs, bad for movies; now they’re good for movies, bad for songs. Minor contributors to films would likely have qualified as coauthors under existing law; courts thus changed the law. [Interesting characterization; courts themselves wouldn’t have said they were changing anything, but that’s certainly not dispositive!] New test: coauthor must have had control over the whole work.

Some scholars say default ownership share should be proportional to contribution. In songwriting, that’s not how people prefer splits. Of 1.2 million cowritten songs, 63% of musical groups treat lesser contributors equally. But maybe an inefficient norm has taken hold. No impact on # of albums released. Equal credit=much more likely to be in top decile of sales, highly significant even controlling for other factors. Coauthorship for lesser contributors significantly predicted that a band that had one gold album would go on to have other gold albums.

Providing evidence against courts’ key empirical assumption that equal shares for lesser contributors will harm creative works via demotivating majority contributors. Equal rewards for lesser contributors are actually positive; creators’ preferences are driven by prior relationships. These results can guide creators and attorneys even in the absence of congressional or judicial action.

Equality and friendship are linked. Role labels help us organize relationships. Balance in an equality relationship depends on equality in allocation, but not on measuring contributions. People strongly desire certain relationships to be equality-based. Market pricing model focuses on measuring contributions and shapes other relationships. They’re incommensurable. Equality is a specific moral demand, not about generosity/asymmetry.

Prior friendships impact whose contributions count and what they’re worth. Prior friendship significantly influences split allocation where the hypo is that subject writes a song and other person provides suggestions and refinements. If they started a band with a friend, nearly 70% preferred equal split, while under 50% picked an equal split when it was not with a friend. Those who chose equality, whatever condition they were in, used equality matching (which isn’t limited to friendship). They know they’re mostly responsible for the song, but feel a moral relationship dominates.

In the gold record set, coded prior friendship or none. For uneven songwriting contribution bands, most significant factor for equal shares was prior relationship. Stable over time though magnitude of effect may change over time.

Friendship can help us predict whether equal shares would be preferred. Should replace control doctrine with industry-based rules that can provide predictability.

Andrew Gilden: does friendship mean friendship or intimate connection—dating, family

A: it’s a peer relationship. Used public data on whether they said they were friends, neighbors, schoolmates, preexisting peer relationship before the economic venture. Initially coded family members differently but there was no difference—they were almost all siblings, and they were peer relationships.

Rosenblatt: compare credit to avoid copyright disputes. Credit might have a different relationship to quality and friendship. People may be willing to share proceeds if they’re already pretty popular. Ed Sheeran already has money from “Shape of You.” Maybe music is better and therefore more popular if the people making it already know each other.

A: Interesting result: hard to renegotiate an initial split, and people became friends when they spent all that time together, but didn’t necessarily renegotiate.

Andres Sawicki: effects of nonmonetary compensation? Usually disproportionately allocated across band members—lead singer/guitarist versus bassist/drummer. So how does that dimension factor in; are they spitting the financial proceeds in ways that are balanced in the fame dimension?

What else might be driving success? How long the people have been making music together?

A: controlled for a lot of that, including who gets the lion’s share. Guitarist who is the songwriter may be more reluctant to split equally with the main singer.

Chris Buccafusco: might be able to tease out causality—does unequal share degrade friendships? How do the bands persist or not over time?

Trevor Reed: why?

A: some people who didn’t share equally said that they didn’t want to share royalties so they could pursue side hustles; if they shared equally then the group would want their full time commitment, which might be related to prior relationships.

Eva E. Subotnik, Dead Hand Guidance: Deconstructing the Posthumous Control of Visual Art

Following aesthetic instructions after death: law and theory. There don’t seem to be many clearcut examples of visual artists trying to micromanage work posthumously; more literary examples. But there does seem to be need/desire for more guidance to be given by artists in that successors want to have that guidance. We should encourage artists to be more specific but not to create binding instructions; guidance is not the same thing. Literary and visual art works are not sufficiently distinct to justify different treatment; enforcing interests from the grave can create conflicts with ©. E.g., can parts of a triptych be reproduced separately? Living generations are often not interested in fulfilling those wishes, making them practically unenforceable (gave Van Gogh virtual exhibit as an example); should not misrepresent to artists the likelihood of specific instructions being binding.

Guy Rub: sometimes it can be helpful for the artist to blame “the lawyers” or “the business” for control claims and perhaps vice versa?

A: these companies tout themselves as helping artists/taking work out of their hands. E.g., advice to reserve one piece of art per year or series to have a representative sample of your work that you could keep as a collection. Business of managing visual artists’ estates has just seemed to explode, and it’s not entirely clear why.

Bita Amani: Theberge case in Canada—transferred authorized paper backed posters to canvas for resale. Deals with © and moral rights, first sale, users rights.

Guy Rub, The Challenges of Posthumous Moral Rights

Exist in Europe, but not as such in US, except for works created & never sold before VARA’s effective date; coauthored work where an author remains alive; the year in which the artist dies. Presumably, the heir can sue, maybe. Probably can waive it too. Found one case in which deceased coauthor’s heirs sued w/the living coauthor.

Five states provided postmortem rights before VARA; assumption was that states would continue to do so. That was a compromise. No state has joined those five, and they’re rarely used. One decision found: a failed California claim by heirs.

Also of course economic rights can provide partial protection for postmortem moral rights.

EU didn’t and probably won’t harmonize moral rights, unclear why. Some countries provide postmortem rights tied to economic rights duration: Germany, Netherlands, Austria. France and Italy provide perpetual protection. These rights are not absolute, especially postmortem rights. German takes an approach of “fading of rights.” French approach: Victor Hugo’s grand-grand-grandson sued an author for a sequel to Les Miserables, in which the villain is neither dead nor the horrible person of the Broadway musical. Court said: after economic rights expire, you can’t just block sequels. Balance with freedom of expression. At the same time, European harmonization maybe should mean that harmonized exceptions to © apply to moral rights. Open question when you can make fun of a character, for example.

Moral rights can be, and often are, cleared and generate a lot of income, which may seem odd given that they’re supposedly nonwaivable. Clearing rights becomes more difficult after the artist’s death: there were 15 Hugo heirs, and the court held that any one of them could assert his moral rights. There are also dead hand issues: you’re supposed to implement Victor Hugo’s rights, not the opinions of his heirs—and Hugo made conflicting statements about what he wanted. So practical concerns about what would offend him arise. Normatively concerning; risk of stagnation.

Waiting for Godot: Initially cross-gender casting was held to violate the estate’s moral rights, but this appears to be eroding. Why?

Removing Confederate statues: moral rights claims if the rights were perpetual? Other examples of racially offensive art placed by public authorities in public places.

Expanding moral rights, especially postmortem, would require us to think very carefully about balancing. There aren’t VARA fair use cases, though technically it applies; there isn’t a very good fit b/t fair use and original works. Is it worth the candle? Not for personality interests, and interests in preservation don’t fit well with moral rights.

RT: Question: does waiver/clearance by one person continue when they die and the moral right descends to their heirs? Or does clearance have to be done all over again?

A: He thinks the answer is yes. Blanket licenses aren’t allowed; you need to approve specific alterations. But his intuition is yes that when there is a waiver/approval, it applies to heirs.

Michal Shur-Ofry: how many of your arguments also apply to postmortem economic rights?