FNa1. Associate Professor, Syracuse University College of Law. Copyright 1997, Laura G. Lape. I wish to thank my research assistants, David Ardia and Laura Speanburg, for their invaluable assistance.

FN1. 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).

FN2. 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. s 201(a) (1994). See also infra Parts II and III.

FN3. 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. ss 101-1101 (1994) (Copyright Act).

FN4. 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").

FN5. 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).

FN6. See 17 U.S.C. s 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 s 6.01, at 6-3 n.1 (1997) (stating that "[t]he 1909 Act did not expressly refer to the doctrine of joint ownership").

FN7. 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).

FN8. 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").

FN9. 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").

FN10. 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.

FN11. 220 F. 195 (S.D.N.Y. 1915), aff'd, 271 F. 211 (2d Cir. 1921).

FN12. 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).

FN13. Maurel, 220 F. at 199 (relying on Levy v. Rutley, 6 L.R.-C.P. 523 (C.P. 1871)).

FN14. 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 plaintiff's evidence of authorship overcame the claim of joint authorship by one of the defendants and a third person).

FN15. 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).

FN16. See, e.g., Edward B. Marks Music Corp. v. Jerry Vogel Music Co., 140 2 F.d 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.), rev'd 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)).

FN17. 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, s 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, s 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, s 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").

FN18. Maurel, 220 F. at 199.

FN19. See, e.g., 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").

FN20. 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.

FN21. 140 F.2d 266 (2d. Cir. 1944).

FN22. 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 writer's] 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.

FN23. 221 F.2d 569 (2d Cir.), rev'd on other grounds, 223 F.2d 252 (2d Cir. 1955).

FN24. 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").

FN25. 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 s 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. s 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).

FN26. For a discussion of the requirement of an independently copyrightable contribution, see infra notes 110-45 and accompanying text.

FN27. 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.

FN28. See supra note 9 (citing legislative history to the 1976 Act).

FN29. 314 F. Supp 640 (S.D.N.Y. 1970).

FN30. See id. at 642-43.

FN31. See id. at 646.

FN32. 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").

FN33. Picture Music, Inc., 314 F. Supp. at 647.

FN34. Id.

FN35. 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.

FN36. 538 F.2d 14 (2d Cir. 1976).

FN37. See id. at 22.

FN38. Id.

FN39. See id. (noting criticism of the 12th Street Rag doctrine).

FN40. See supra notes 20-22 and accompanying text (discussing the Marks rule).

FN41. Gilliam, 538 F.2d at 22.

FN42. 17 U.S.C. s 101 (1994).

FN43. 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 possibility of requiring inseparable contributions).

FN44. 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.

FN45. 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).

FN46. 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).

FN47. 945 F.2d 500 (2d Cir. 1991).

FN48. See id. at 502.

FN49. For a discussion of judicial requirements as to the contribution necessary from each co-author, see infra notes 110-44 and accompanying text.

FN50. Childress, 945 F.2d at 507.

FN51. Id. at 509.

FN52. 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).

FN53. 896 F.2d 1485 (D.C. Cir. 1988), aff'd on other grounds, 990 U.S. 730 (1989).

FN54. 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.

FN55. See id. at 1497 n.18.

FN56. Id. at 1497. The court remanded the case for further consideration of the joint authorship claim. See id.

FN57. See Childress v. Taylor, 945 F.2d 500, 507 n.6 (2d Cir. 1991).

FN58. See id.

FN59. Id.

FN60. See 17 U.S.C. s 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.

FN61. 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 s 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").

FN62. 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").

FN63. 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 other grounds, 797 F.2d 1222 (3d Cir. 1986), cert. denied, 479 U.S. 1031 (1987).

FN64. 903 F.2d 1486 (11th Cir. 1990).

FN65. See id. at 1493.

FN66. 17 U.S.C. s 101 (1994).

FN67. 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").

FN68. See 1 Nimmer & Nimmer, supra note 6, s 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").

FN69. 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").

FN70. See 17 U.S.C. s 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).

FN71. 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.

FN72. 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").

FN73. 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").

FN74. 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").

FN75. See, e.g., 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").

FN76. 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"').

FN77. 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).

FN78. 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.

FN79. 16 U.S.P.Q.2d (BNA) 1795 (S.D.N.Y. 1990).

FN80. 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.

FN81. 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.

FN82. 945 F.2d 500 (2d Cir. 1991).

FN83. 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.

FN84. 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.

FN85. Id. at 508.

FN86. 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"').

FN87. 868 F.2d 1313 (2d Cir.), cert. denied, 493 U.S. 883 (1989).

FN88. 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.

FN89. See Childress, 945 F.2d at 508 (citing the Weissman and Fisher opinions).

FN90. 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.

FN91. 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).

FN92. 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").

FN93. 13 F.3d 1061 (7th Cir. 1994).

FN94. 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 s 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.

FN95. 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).

FN96. 846 F.2d 1485, 1496-97 (D.C. Cir. 1988), aff'd on other grounds, 490 U.S. 730 (1989).

FN97. 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.

FN98. See Weissmann v. Freeman, 868 F.2d 1313 (2d Cir.), cert. denied, 493 U.S. 883 (1989).

FN99. 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).

FN100. 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).

FN101. See Weissmann, 684 F. Supp. at 1254-55.

FN102. 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.

FN103. 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.

FN104. 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.

FN105. 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)).

FN106. 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").

FN107. 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).

FN108. 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).

FN109. 609 F. Supp. 1307 (E.D. Pa. 1985).

FN110. 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").

FN111. See 17 U.S.C. s 101 (1994) (defining joint works).

FN112. 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, s 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").

FN113. See S. 1253, 101st Cong. (1989). The bill would have amended the s 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.

FN114. 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").

FN115. 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.

FN116. See 1 Nimmer & Nimmer, supra note 6, s 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, s 6.07, at 6-21))). This standard is referred to herein as the "more than de minimis" standard.

FN117. See 1 Nimmer & Nimmer, supra note 6, s 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).

FN118. Id. (stating that a contribution limited to ideas could qualify the contributor as a joint author); see 17 U.S.C. s 102(b) (1994) (providing that copyright protection does not extend to any idea).

FN119. 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.

FN120. 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, s 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).

FN121. See Erickson, 13 F.3d at 1070-71 (arguing that use of the term "authors" in ss 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 ss 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, s 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. ss 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).

FN122. 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.").

FN123. 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. s 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").

FN124. 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).

FN125. 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, s 8, cl. 8 (granting to Congress the power "[t]o promote the Progress of Science" by adopting copyright legislation).

FN126. 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)).

FN127. 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. s 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").

FN128. See supra notes 115-18 and accompanying text (discussing the more than de minimis standard).

FN129. 499 U.S. 340 (1991).

FN130. 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).

FN131. Feist, 499 U.S. at 363.

FN132. 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).

FN133. 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.

FN134. 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.

FN135. 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.

FN136. See 17 U.S.C. s 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. s 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 Copyrights 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).

FN137. 863 F. Supp. 523 (W.D. Mich. 1994).

FN138. See id. at 528.

FN139. Id. at 524, 528.

FN140. Id. at 524.

FN141. 914 F. Supp. 743 (D.P.R. 1995).

FN142. See id. at 766 (stating that "none of the defendants, except Molina, made a tangible contribution to the play").

FN143. Id. at 755.

FN144. 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.

FN145. 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.

FN146. 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).

FN147. See 1 Goldstein, supra note 93, s 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, s 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").

FN148. 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).

FN149. 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.

FN150. See supra notes 69-109 and accompanying text (discussing the courts' requirement of intent to be joint authors).

FN151. 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").

FN152. 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 of lack of merger).

FN153. See supra notes 52-60 and accompanying text (discussing the courts' subordination of joint work doctrine to work-made-for-hire doctrine).

FN154. See supra notes 65-68 and 110-44 and accompanying text (discussing the courts' requirement of independently copyrightable contributions).

FN155. 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).

FN156. 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. Ill. 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).

FN157. See supra notes 65-66 and 69-80 and accompanying text (explaining that the statute requires only intent for contributions to merge).

FN158. See supra notes 74-76 and accompanying text (discussing evidence of intent to be joint authors).

FN159. See 17 U.S.C. s 106(2) (1994) (granting the copyright owner the exclusive right to prepare derivative works); see also id. s 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. s 107 (permitting fair use of protected material); id. s 117(1) (permitting copies and adaptations of computer programs in certain circumstances).

FN160. 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. s 204(a) (1994) (requiring a writing signed by the copyright owner for a "transfer of copyright ownership"); id. s 101 (excluding a nonexclusive license from the definition of the term "transfer of copyright ownership").

FN161. 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).

FN162. 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, <cni-copyright@cni.org> (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).

FN163. 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").

FN164. 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 Files 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 Illegal, 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 column 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).

FN165. 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 s 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 "to 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 recommendation was embodied in bills introduced in the Senate and House of Representatives in September of 1995. See S. 1284, 104th Cong. s 2(a) (1995); H.R. 2441, 104th Cong. s 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. s 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).

FN166. 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, <cni-copyright@cni.org> (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.

FN167. For a definition of the term "listserv," see supra note 1.

FN168. I selected dinosaurs, music research, nerdnosh, and weird-L from a list of lists compiled and made available by Stephanie da Silva. See <arielle @taronga.com> (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, < listproc@cni.org> (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." <http://www.listproc @lepomis.psych.upenn.edu> (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 musial [sic] scores, music printing, music analysis, musicology and ethnomusicology and tertiary music education." <http://www.comlab.ox.ac.uk> (copy on file with author). 3) nerdnosh: "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." <http://www.netins.net/showcase/ dmorris/nerdnosh.html> (copy on file with author). 4) weird-L: "Disturbing and potentially offensive prose or poetry. The list is moderated and submissions may be edited." <listserv@brownvm.brown.edu> (copy on file with author).

FN169. 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.

FN170. 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, <cni-copyright@cni.org> (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).

FN171. 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, < cni-copyright@cni.org> (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 Law Review).

FN172. See 1 Nimmer & Nimmer, supra note 6, s 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").

FN173. See supra notes 65-109 and accompanying text (discussing the intent required for creation of a joint work).

FN174. See Information Infrastructure Task Force, supra note 150, at 16 (reporting that waivers of copyright "are not uncommon on the Internet").

FN175. 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.

FN176. 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, s 3.0, at 3:3, s 3.3, at 3:30, s 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. ss 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).

FN177. See cni-copyright, supra note 174.

FN178. 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. s 106(2) (1994). If not, then the copyright owner retains some rights and the waiver is not complete.

FN179. 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.

FN180. This language appeared on <cni-copyright@cni.org> on November 29, 1994.

FN181. 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).

FN182. See supra notes 69-109 and accompanying text (discussing the intent requirement for creation of a joint work).