IPSC Panel 14 – Copyright Authorship & Ownership

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

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

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

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

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

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

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

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

Shani Shisha, Copyright Pragmatism

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Trevor Reed: why?

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

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

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

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

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

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

Guy Rub, The Challenges of Posthumous Moral Rights

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

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

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

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

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

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

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

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

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

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

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

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