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945 F.2d 500
Alice CHILDRESS, Plaintiff-Appellee,
Clarice TAYLOR, Paul B. Berkowsky, the Moms Company, and Ben Caldwell, Defendants-Appellants.
United States Court of Appeals,
Argued July 8, 1991.
Decided Sept. 18, 1991.
JON O. NEWMAN, Circuit Judge:Facts
This appeal requires consideration of the standards for determining when
a contributor to a copyrighted work is entitled to be regarded as a joint
author. The work in question is a play about the legendary Black comedienne
Jackie "Moms" Mabley. The plaintiff-appellee Alice Childress
claims to be the sole author of the play. Her claim is disputed by defendant-appellant
Clarice Taylor, who asserts that she is a joint author of the play. Taylor,
Paul B. Berkowsky, Ben Caldwell, and the "Moms" Company appeal
from the February 21, 1991, judgment of the District Court for the Southern
District of New York (Charles S. Haight, Jr., Judge) determining, on motion
for summary judgment, that Childress is the sole author. We affirm.
Defendant Clarice Taylor has been an actress for over forty years, performing
on stage, radio, television, and in film. After portraying "Moms"
Mabley in a skit in an off-off-Broadway production ten years ago, Taylor
became interested in developing a play based on Mabley's life. Taylor began
to assemble material about "Moms" Mabley, interviewing her friends
and family, collecting her jokes, and reviewing library resources.
In 1985, Taylor contacted the plaintiff, playwright Alice Childress, about
writing a play based on "Moms" Mabley. Childress had written
many plays, for one of which she won an "Obie" award. Taylor
had known Childress since the 1940s when they were both associated with
the American Negro Theatre in Harlem and had previously acted in a number
of Childress's plays.
When Taylor first mentioned the "Moms" Mabley project to Childress
in 1985, Childress stated she was not interested in writing the script because
she was too occupied with other works. However, when Taylor approached
Childress again in 1986, Childress agreed, though she was reluctant due
to the time constraints involved. Taylor had interested the Green Plays
Theatre in producing the as yet unwritten play, but the theatre had only
one slot left on its summer 1986 schedule, and in order to use that slot,
the play had to be written in six weeks.
Taylor turned over all of her research material to Childress, and later
did further research at Childress's request. It is undisputed that Childress
wrote the play, entitled "Moms: A Praise Play for a Black Comedienne."
However, Taylor, in addition to providing the research material, which
according to her involved a process of sifting through facts and selecting
pivotal and key elements to include in a play on "Moms" Mabley's
life, also discussed with Childress the inclusion of certain general scenes
and characters in the play. Additionally, Childress and Taylor spoke on
a regular basis about the progress of the play.
Taylor identifies the following as her major contributions to the play:
(1) she learned through interviews that "Moms" Mabley called
all of her piano players "Luther," so Taylor suggested that the
play include such a character; (2) Taylor and Childress together interviewed
Carey Jordan, "Moms" Mabley's housekeeper, and upon leaving the
interview they came to the conclusion that she would be a good character
for the play, but Taylor could not recall whether she or Childress suggested
it; (3) Taylor informed Childress that "Moms" Mabley made a weekly
trip to Harlem to do ethnic food shopping; (4) Taylor suggested a street
scene in Harlem with speakers because she recalled having seen or listened
to such a scene many times; (5) the idea of using a minstrel scene came
out of Taylor's research; (6) the idea of a card game scene also came out
of Taylor's research, although Taylor could not recall who specifically
suggested the scene; (7) some of the jokes used in the play came from Taylor's
research; and (8) the characteristics of "Moms" Mabley's personality
portrayed in the play emerged from Taylor's research. Essentially, Taylor
contributed facts and details about "Moms" Mabley's life and discussed
some of them with Childress. However, Childress was responsible for the
actual structure of the play and the dialogue.
Childress completed the script within the six-week time frame. Childress
filed for and received a copyright for the play in her name. Taylor produced
the play at the Green Plays Theatre in Lexington, New York, during the 1986
summer season and played the title role. After the play's run at the Green
Plays Theatre, Taylor planned a second production of the play at the Hudson
Guild Theatre in New York City.
At the time Childress agreed to the project, she did not have any firm
arrangements with Taylor, although Taylor had paid her $2,500 before the
play was produced. On May 9, 1986, Taylor's agent, Scott Yoselow, wrote
to Childress's agent, Flora Roberts, stating: Per our telephone conversation,
this letter will bring us up-to-date on the current status of our negotiation
for the above mentioned project:
1. CLARICE TAYLOR will pay ALICE CHILDRESS for her playwriting services
on the MOMS MABLEY PROJECT the sum of $5,000.00, which will also serve as
an advance against any future royalties.
2. The finished play shall be equally owned and be the property of both
CLARICE TAYLOR and ALICE CHILDRESS.
It is my understanding that Alice has commenced writing the project. I
am awaiting a response from you regarding any additional points we have
yet to discuss. Flora Roberts responded to Yoselow in a letter dated June
16, 1986: As per our recent telephone conversation, I have told Alice Childress
that we are using your letter to me of May 9, 1986 as a partial memo preparatory
to our future good faith negotiations for a contract. There are two points
which I include herewith to complete your two points in the May 9th letter,
i.e.: 1) The $5,000 advance against any future royalties being paid by Clarice
Taylor to Alice Childress shall be paid as follows. Since $1,000 has already
been paid, $1,500 upon your receipt of this letter and the final $2,500
to be paid upon submission of the First Draft, but in no event later than
July 7, 1986. 2) It is to be understood that pending the proper warranty
clauses to be included in the contract, Miss Childress is claiming originality
for her words only in said script.
After the Green Plays Theatre production, Taylor and Childress attempted
to formalize their relationship. Draft contracts were exchanged between
Taylor's attorney, Jay Kramer, and Childress's agent, Roberts. During this
period, early 1987, the play was produced at the Hudson Guild Theatre with
the consent of both Taylor and Childress. Childress filed for and received
a copyright for the new material added to the play produced at the Hudson
In March 1987, Childress rejected the draft agreement proposed by Taylor, [FN1] and the parties'
relationship deteriorated. Taylor decided to mount another production of
the play without Childress. Taylor hired Ben Caldwell to write another
play featuring "Moms" Mabley; Taylor gave Caldwell a copy of
the Childress script and advised him of elements that should be changed.
The "Moms" Mabley play that Caldwell wrote was produced at the
Astor Place Theatre in August 1987. [FN2]
No reference to Childress was made with respect to this production. However,
a casting notice in the trade paper "Back Stage" reported the
production of Caldwell's play and noted that it had been "presented
earlier this season under an Equity LOA at the Hudson Guild Theatre."
Flora Roberts contacted Jay Kramer to determine whether this notice was
correct. Kramer responded:
Ben Caldwell has written the play which I will furnish to you
when a final draft is available. We have tried in every way to distinguish
the new version of the play from what was presented at the Hudson Guild,
both by way of content and billing. Undoubtedly, because of the prevalence
of public domain material in both versions of the play, there may be unavoidable
similarities. Please also remember that Alice was paid by Clarice for rights
to her material which we have never resolved. Kramer never sent a copy of
Caldwell's play. Childress's attorney, Alvin Deutsch, sent Kramer a letter
advising him of Childress's rights in the play as produced at the Hudson
Guild and of her concerns about the advertising connecting Caldwell's play
to hers. For example, one advertisement for Caldwell's play at the Astor
Place Theatre quoted reviews referring to Childress's play. Other advertisements
made reference to the fact that the play had been performed earlier that
season at the Hudson Guild Theatre.
Childress sued Taylor and other defendants alleging violations of the Copyright
Act, 17 U.S.C. s 101 et seq. (1988), the Lanham Act, 15 U.S.C. ss 1051,
1125(a) (1988), and New York's anti-dilution statute, N.Y. Gen.Bus.Law s
368-d (McKinney 1984). Taylor contended that she was a joint author with
Childress, and therefore shared the rights to the play. Childress moved
for summary judgment, which the District Court granted. The Court concluded
that Taylor was not a joint author of Childress's play and that Caldwell's
play was substantially similar to and infringed Childress's play. In rejecting
Taylor's claim of joint authorship, Judge Haight ruled (a) that a work qualifies
as a "joint work" under the definition section of the Copyright
Act, 17 U.S.C. s 101, only when both authors intended, at the time the work
was created, "that their contributions be merged into inseparable or
interdependent parts of a unitary whole," id., and (b) that there was
insufficient evidence to permit a reasonable trier to find that Childress
had the requisite intent. The Court further ruled that copyright law requires
the contributions of both authors to be independently copyrightable, and
that Taylor's contributions, which consisted of ideas and research, were
In common with many issues arising in the domain of copyrights, the determination
of whether to recognize joint authorship in a particular case requires a
sensitive accommodation of competing demands advanced by at least two persons,
both of whom have normally contributed in some way to the creation of a
work of value. Care must be taken to ensure that true collaborators in
the creative process are accorded the perquisites of co-authorship and to
guard against the risk that a sole author is denied exclusive authorship
status simply because another person rendered some form of assistance.
Copyright law best serves the interests of creativity when it carefully
draws the bounds of "joint authorship" so as to protect the legitimate
claims of both sole authors and co-authors.
Co-authorship was well known to the common law. An early formulation,
thought by Learned Hand to be the first definition of "joint authorship,"
see Edward B. Marks Music Corp. v. Jerry Vogel Music Co., 140 F.2d 266,
267 (2d Cir.1944) ("Marks "), is set out in Levy v. Rutley, L.R.,
6 C.P. 523, 529 (Keating, J.) (1871): "a joint laboring in furtherance
of a common design." Judge Hand endorsed that formulation in the District
Court, concluding that the book for the comic opera "Sweethearts"
was a work of joint authorship. Maurel v. Smith, 220 F. 195 (S.D.N.Y.1915),
aff'd, 271 F. 211 (2d Cir.1921). Three decades later, he adopted the formulation
for this Circuit in Marks, determining that the words and music of a song
("December and May") formed a work of joint authorship even though
the lyricist wrote the words before he knew the identity of the composer
who would later write the music.
Like many brief formulations, the language from Levy v. Rutley is useful
in pointing an inquiry in the proper direction but does not provide much
guidance in deciding the close cases. Many people can be said to "jointly
labor" toward "a common design" who could not plausibly be
considered co-authors. And beyond the fairly straightforward context of
words and music combined into a song, whatever formulation is selected will
not necessarily fit neatly around such varied fact situations as those concerning
architectural plans, see Meltzer v. Zoller, 520 F.Supp. 847 (D.N.J.1981),
or computer programs, see Ashton-Tate Corp. v. Ross, 728 F.Supp. 597 (N.D.Cal.1989),
aff'd, 916 F.2d 516 (2d Cir.1990). Though 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.
The Copyright Act defines 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. 17 U.S.C. s
101. As Professor Nimmer has pointed out, this definition is really the
definition of a work of joint authorship. See 1 Nimmer on Copyright s 6.01
(1991). The definition concerns the creation of the work by the joint authors,
not the circumstances, in addition to joint authorship, under which a work
may be jointly owned, for example, by assignment of an undivided interest.
The distinction affects the rights that are acquired. Joint authors hold
undivided interests in a work, like all joint owners of a work, but joint
authors, unlike other joint owners, also enjoy all the rights of authorship,
including the renewal rights applicable to works in which a statutory copyright
subsisted prior to January 1, 1978. See 17 U.S.C. s 304.
Some aspects of the statutory definition of joint authorship are fairly
straightforward. Parts of a unitary whole are "inseparable" when
they have little or no independent meaning standing alone. That would often
be true of a work of written text, such as the play that is the subject
of the pending litigation. By contrast, parts of a unitary whole are "interdependent"
when they have some meaning standing alone but achieve their primary significance
because of their combined effect, as in the case of the words and music
of a song. Indeed, a novel and a song are among the examples offered by
the legislative committee reports on the 1976 Copyright Act to illustrate
the difference between "inseparable" and "interdependent"
parts. See H.R.Rep. No. 1476, 94th Cong., 2d Sess. 120 (1976) ("House
Report "), reprinted in 1976 U.S.C.C.A.N. 5659, 5736; S.Rep. No. 473,
94th Cong., 2d Sess. 103-04 (1975) ("Senate Report "). [FN3]
The legislative history also clarifies other aspects of the statutory definition,
but leaves some matters in doubt. Endeavoring to flesh out the definition,
the committee reports state: [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.... House Report at 120; Senate Report at 103 (emphasis
added). This passage appears to state two alternative criteria--one focusing
on the act of collaboration and the other on the parties' intent. However,
it is hard to imagine activity that would constitute meaningful "collaboration"
unaccompanied by the requisite intent on the part of both participants that
their contributions be merged into a unitary whole, and the case law has
read the statutory language literally so that the intent requirement applies
to all works of joint authorship. See, e.g., Weissmann v. Freeman, 868
F.2d 1313, 1317-19 (2d Cir.1989); Eckert v. Hurley Chicago Co., Inc., 638
F.Supp. 699, 702-03 (N.D.Ill.1986).
A more substantial issue arising under the statutory definition of "joint
work" is whether the contribution of each joint author must be copyrightable
or only the combined result of their joint efforts must be copyrightable.
The Nimmer treatise argues against a requirement of copyrightability of
each author's contribution, see 1 Nimmer on Copyright s 6.07; Professor
Goldstein takes the contrary view, see 1 Paul Goldstein, Copyright: Principles,
Law and Practice s 18.104.22.168 (1989), with the apparent agreement of the Latman
treatise, see William F. Patry, Latman's The Copyright Law 116 (6th ed.
1986) (hereinafter "Latman "). The case law supports a requirement
of copyrightability of each contribution. See M.G.B. Homes, Inc. v. Ameron
Homes, Inc., 903 F.2d 1486, 1493 (11th Cir.1990); S.O.S., Inc. v. Payday,
Inc., 886 F.2d 1081, 1087 (9th Cir.1989); Ashton-Tate Corp. v. Ross, 728
F.Supp. at 601; Whelan Associates, Inc. v. Jaslow Dental Laboratory, Inc.,
609 F.Supp. 1307, 1318-19 (E.D.Pa.1985), aff'd without consideration of
this point, 797 F.2d 1222 (3d Cir.1986), cert. denied, 479 U.S. 1031, 107
S.Ct. 877, 93 L.Ed.2d 831 (1987); Kenbrooke Fabrics Inc. v. Material Things,
223 U.S.P.Q. 1039, 1044-45, 1984 WL 532 (S.D.N.Y.1984); Meltzer v. Zoller,
520 F.Supp. 847, 857 (D.N.J.1981); Aitken, Hazen, Hoffman, Miller, P.C.
v. Empire Construction Co., 542 F.Supp. 252, 259 (D.Neb.1982).
[FN4] The Register of Copyrights strongly
supports this view, arguing that it is required by the statutory standard
of "authorship" and perhaps by the Constitution. See Moral Rights
in Our Copyright Laws: Hearings on S. 1198 and S. 1253 Before the Subcomm.
on Patents, Copyrights and Trademarks of the Senate Comm. on the Judiciary,
101st Cong., 1st Sess. 210-11 (1989) (statement of Ralph Oman).
The issue, apparently open in this Circuit, is troublesome. If the focus
is solely on the objective of copyright law to encourage the production
of creative works, it is difficult to see why the contributions of all joint
authors need be copyrightable. An individual creates a copyrightable work
by combining a non-copyrightable idea with a copyrightable form of expression;
the resulting work is no less a valuable result of the creative process
simply because the idea and the expression came from two different individuals.
Indeed, it is not unimaginable that there exists a skilled writer who might
never have produced a significant work until some other person supplied
the idea. The textual argument from the statute is not convincing. The
Act surely does not say that each contribution to a joint work must be copyrightable,
and the specification that there be "authors" does not necessarily
require a copyrightable contribution. "Author" is not defined
in the Act and appears to be used only in its ordinary sense of an originator.
The "author" of an uncopyrightable idea is nonetheless its author
even though, for entirely valid reasons, the law properly denies him a copyright
on the result of his creativity. And the Register's tentative constitutional
argument seems questionable. It 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. [FN5]
Nevertheless, we are persuaded to side with the position taken by the case
law and endorsed by the agency administering the Copyright Act. The insistence
on copyrightable contributions by all putative joint authors might serve
to prevent some spurious claims by those who might otherwise try to share
the fruits of the efforts of a sole author of a copyrightable work, even
though a claim of having contributed copyrightable material could be asserted
by those so inclined. More important, the prevailing view strikes an appropriate
balance in the domains of both copyright and contract law. In the absence
of contract, the copyright remains with the one or more persons who created
copyrightable material. Contract law enables a person to hire another to
create a copyrightable work, and the copyright law will recognize the employer
as "author." 17 U.S.C. s 201(b). Similarly, the person with
non- copyrightable material who proposes to join forces with a skilled writer
to produce a copyrightable work is free to make a contract to disclose his
or her material in return for assignment of part ownership of the resulting
copyright. Id. s 201(d). And, as with all contract matters, the parties
may minimize subsequent disputes by formalizing their agreement in a written
contract. Cf. 17 U.S.C. s 101 ("work made for hire" definition
of "specially ordered" or "commissioned" work includes
requirement of written agreement). It seems more consistent with the spirit
of copyright law to oblige all joint authors to make copyrightable contributions,
leaving those with non-copyrightable contributions to protect their rights
There remains for consideration the crucial aspect of joint authorship--the
nature of the intent that must be entertained by each putative joint author
at the time the contribution of each was created. The wording of the statutory
definition appears to make relevant only the state of mind regarding the
unitary nature of the finished work--an intention "that their contributions
be merged into inseparable or interdependent parts of a unitary whole."
However, an inquiry so limited would extend joint author status to many
persons who are not likely to have been within the contemplation of Congress.
For example, a writer frequently works with an editor who makes numerous
useful revisions to the first draft, some of which will consist of additions
of copyrightable expression. Both intend their contributions to be merged
into inseparable parts of a unitary whole, yet very few editors and even
fewer writers would expect the editor to be accorded the status of joint
author, enjoying an undivided half interest in the copyright in the published
work. Similarly, research assistants may on occasion contribute to an author
some protectable expression or merely a sufficiently original selection
of factual material as would be entitled to a copyright, yet not be entitled
to be regarded as a joint author of the work in which the contributed material
appears. What distinguishes the writer-editor relationship and the writer-
researcher relationship from the true joint author relationship is the lack
of intent of both participants in the venture to regard themselves as joint
Focusing on whether the putative joint authors regarded themselves as joint
authors is especially important in circumstances, such as the instant case,
where one person (Childress) is indisputably the dominant author of the
work and the only issue is whether that person is the sole author or she
and another (Taylor) are joint authors. See Fisher v. Klein, 16 U.S.P.Q.2d
1795, 1798 (S.D.N.Y.1990); 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 (2d Cir.),
cert. denied, 409 U.S. 997, 93 S.Ct. 320, 34 L.Ed.2d 262 (1972). This concern
requires less exacting consideration in the context of traditional forms
of collaboration, such as between the creators of the words and music of
In this case, appellant contends that Judge Haight's observation that "Childress
never shared Taylor's notion that they were co-authors of the play"
misapplies the statutory standard by focusing on whether Childress "intended
the legal consequences which flowed from her prior acts." Brief for
Appellant at 22. We do not think Judge Haight went so far. He did not
inquire whether Childress intended that she and Taylor would hold equal
undivided interests in the play. But he properly insisted that they entertain
in their minds the concept of joint authorship, whether or not they understood
precisely the legal consequences of that relationship. Though joint authorship
does not require an understanding by the co-authors of the legal consequences
of their relationship, obviously some distinguishing characteristic of the
relationship must be understood in order for it to be the subject of their
intent. In many instances, a useful test will be whether, in the absence
of contractual agreements concerning listed authorship, each participant
intended that all would be identified as co-authors. Though "billing"
or "credit" is not decisive in all cases and joint authorship
can exist without any explicit discussion of this topic by the parties, [FN7] consideration
of the topic helpfully serves to focus the fact-finder's attention on how
the parties implicitly regarded their undertaking.
An inquiry into how the putative joint authors regarded themselves in relation
to the work has previously been part of our approach in ascertaining the
existence of joint authorship. In Gilliam v. American Broadcasting Companies,
Inc., 538 F.2d 14 (2d Cir.1976), we examined the parties' written agreements
and noted that their provisions indicated "that the parties did not
consider themselves joint authors of a single work." Id. at 22 (emphasis
added). This same thought is evident in Judge Leval's observation that
"[i]t is only where the dominant author intends to be sharing authorship
that joint authorship will result." Fisher v. Klein, 16 U.S.P.Q.2d
at 1798 (emphasis added). And it echoes the approach taken by then-District
Judge Learned Hand when he determined that the facts showed that two authors
"agreed to a joint authorship in the piece, and that they accepted
whatever the law implied as to the rights and obligations which arose from
such an undertaking." Maurel v. Smith, 220 F. at 198 (emphasis added).
See also Weissmann v. Freeman, 868 F.2d at 1318 (each of those claiming
to be joint authors "must intend to contribute to a joint work.").
Judge Haight was entirely correct to inquire whether Childress ever shared
Taylor's "notion that they were co-authors of the Play."
Examination of whether the putative co-authors ever shared an intent to
be co- authors serves the valuable purpose of appropriately confining the
bounds of joint authorship arising by operation of copyright law, while
leaving those not in a true joint authorship relationship with an author
free to bargain for an arrangement that will be recognized as a matter of
both copyright and contract law. Joint authorship entitles the co-authors
to equal undivided interests in the work, see 17 U.S.C. s 201(a); Community
for Creative Non-Violence v. Reid, 846 F.2d 1485, 1498 (D.C.Cir.1988), aff'd
without consideration of this point, 490 U.S. 730, 109 S.Ct. 2166, 104 L.Ed.2d
811 (1989). That equal sharing of rights should be reserved for relationships
in which all participants fully intend to be joint authors. The sharing
of benefits in other relationships involving assistance in the creation
of a copyrightable work can be more precisely calibrated by the participants
in their contract negotiations regarding division of royalties or assignment
of shares of ownership of the copyright, see 17 U.S.C. s 201(d).
In this case, the issue is not only whether Judge Haight applied the correct
standard for determining joint authorship but also whether he was entitled
to conclude that the record warranted a summary judgment in favor of Childress.
We are satisfied that Judge Haight was correct as to both issues. We need
not determine whether we agree with his conclusion that Taylor's contributions
were not independently copyrightable since, even if they were protectable
as expression or as an original selection of facts, we agree that there
is no evidence from which a trier could infer that Childress had the state
of mind required for joint authorship. As Judge Haight observed, whatever
thought of co-authorship might have existed in Taylor's mind "was emphatically
not shared by the purported co-author." There is no evidence that
Childress ever contemplated, much less would have accepted, crediting the
play as "written by Alice Childress and Clarice Taylor."
Childress was asked to write a play about "Moms" Mabley and did
so. To facilitate her writing task, she accepted the assistance that Taylor
provided, which consisted largely of furnishing the results of research
concerning the life of "Moms" Mabley. As the actress expected
to portray the leading role, Taylor also made some incidental suggestions,
contributing ideas about the presentation of the play's subject and possibly
some minor bits of expression. But there is no evidence that these aspects
of Taylor's role ever evolved into more than the helpful advice that might
come from the cast, the directors, or the producers of any play. A playwright
does not so easily acquire a co- author.
Judge Haight was fully entitled to bolster his decision by reliance on
the contract negotiations that followed completion of the script. Though
his primary basis for summary judgment was the absence of any evidence supporting
an inference that Childress shared "Taylor's notion that they were
co-authors," he properly pointed to the emphatic rejection by Childress
of the attempts by Taylor's agent to negotiate a co-ownership agreement
and Taylor's acquiescence in that rejection. Intent "at the time the
writing is done" remains the "touchstone," House Report at
120; Senate Report at 103, but subsequent conduct is normally probative
of a prior state of mind. See, e.g., United States v. Ramirez, 894 F.2d
565, 569 (2d Cir.1990); United States v. Tramunti, 513 F.2d 1087 (2d Cir.),
cert. denied, 423 U.S. 832, 96 S.Ct. 54, 46 L.Ed.2d 50 (1975).
Taylor's claim of co-authorship was properly rejected, and with the rejection
of that claim, summary judgment for Childress was properly entered on her
copyright and unfair competition claims, and on defendants' counterclaim.
The judgment of the District Court is affirmed.
FN1. The preamble
to this draft agreement stated: The Producer [Taylor] wishes to acquire
from the Author [Childress] the rights to produce and present a dramatic
play written by Author and heretofore presented at the Hudson Guild Theatre
based on the life and career of Moms Mabley....
FN2. The Caldwell
play was billed as being "based on a concept by Clarice Taylor."
Taylor was not listed as an author of that play.
Nimmer suggests that the distinction is analogous to the distinction between
derivative and collective works, with parts said to be "inseparable"
if the contribution of a second author "recast[s], transform [s] or
adapt[s]" the contribution of a first author, and said to be "interdependent"
if the contributions of each author are assembled, without recasting, into
a collective whole. See 1 Nimmer on Copyright s 6.04 at 6- 11; M.G.B.
Homes, Inc. v. Ameron Hoes, Inc., 903 F.2d 1486, 1493 (11th Cir.1990).
The analogy is inexact at best since the elements of a collective work normally
have considerable significance as independent parts; each play in an anthology
remains a significant creation even though the selection of plays entitles
the anthology to a copyright, and the selection of items to be combined,
which produces the copyrightable ingredient of the collective work, normally
adds far less significance to the constituent parts than the enhanced effect
resulting from the combination of the words and music of a song in a work
of joint authorship.
FN4. Two Circuits
have adverted to the issue, but found it unnecessary to resolve it. The
District of Columbia Circuit has quoted the passage from the Nimmer treatise
that argues against a requirement of copyrightability for all contributions
to a joint work but then discussed the issue in a footnote beginning "If
Nimmer is correct...." Community for Creative Non-Violence v. Reid,
846 F.2d 1485, 1496 & n. 15 (D.C.Cir.1988) (emphasis added), aff'd without
consideration of this point, 490 U.S. 730, 109 S.Ct. 2166, 104 L.Ed.2d 811
(1989). The Third Circuit has explicitly held the issue open. See Andrien
v. Southern Ocean County Chamber of Commerce, 927 F.2d 132, 136 (3d Cir.1991)
FN5. Judge Friendly
has suggested that the concept of authorship in the constitutional grant
implies some limitations. "It would thus be quite doubtful that Congress
could grant employers the exclusive right to the writings of employees regardless
of the circumstances." Scherr v. Universal Match Corp., 417 F.2d 497,
502 (2d Cir.1969) (Friendly, J., dissenting), cert. denied, 397 U.S. 936,
90 S.Ct. 945, 25 L.Ed.2d 116 (1970). He suggested that the "work for
hire" doctrine, whether applied to employees or independent contractors
(commissioned works) squares with the constitutional concept because vesting
rights of authorship in the employer is what the parties "contemplated
at the time of contracting, or at least what they probably would have contemplated
if they had thought about it." Id. However, this seems more like a
justification for transfer of ownership than for recognition of authorship.
Though the United States is perhaps the only country that confers "authorship"
status on the employer of the creator of a work made for hire, see Latman
at 114 n. 2, its decision to do so is not constitutionally suspect.
FN6. In some situations,
the editor or researcher will be the employee of the primary author, in
which event the copyright in the contributions of the editor or researcher
would belong to the author, under the "work made for hire" doctrine.
But in many situations the editor or researcher will be an independent
contractor or an employee of some person or entity other than the primary
author, in which event a claim of joint authorship would not be defeated
by the "work made for hire" doctrine.
consideration of whether the parties contemplated listed co-authorship (or
would have accepted such billing had they thought about it) is not a helpful
inquiry for works written by an uncredited "ghost writer," either
as a sole author, as a joint author, or as an employee preparing a work