Re: Copyright Exam Questions [was "State trooper lays claim to software he developed"]

Another nice poser!

Putting aside the fundamental question of whether either NPO has any ownership in the copyrights to the underlying sketches (it would seem to me that the students have first claim on that, but one might be able to eke a joint-work argument out of the collaborative process at each NPO), there seems to be enough basis in the facts stated to support a joint-authorship argument as between the two NPOs, which would give either one of them the rights to create the final script, produce the play, make and market the film, with the important caveat that each would have to share the profits with the other joint owner (and the students as well, if *they* are joint owners). As a practical matter, telling NPO2 to take a hike could well be enough, since the bother of litigating over the matter is probably not worth it, and a lawyer contemplating an award of attorneys' fees in a statutory-damages case (everyone *did* of course register their copyrights before the film was made, right?) would still have to contemplate a high probability of failure.

Here's a follow-on that occurred to me: what if NPO2 got hold of a copy of NPO1's film and tried to market it on its own--can NPO1 sue for infringement? NPO1 made the derivative, not NPO2, and it was the script that was the work of joint authorship, so I suspect that the copyright in the film, standing alone, is not shared--though the analysis of these joint rights and derivative work questions does get quite murky.

On 1/17/07, Mike Oliver <bowiejensen[_at_]gmail.com> wrote:
>
> On 1/16/07, Terry Carroll <carroll[_at_]tjc.com> wrote:
> >
> > Interesting story over at
> > http://www.jsonline.com/story/index.aspx?id=552682 ...
> >
> > Basic facts are that a Wisconsin state trooper modified some software,
> > apparently originally written by the state of Iowa. Whether he did so on
> > state time and using state facilities, or under the state's direction,
> > is
> > apparently subject to dispute. Wisconsin is demanding he turn over the
> > code. The trooper has filed suit, in a state court.
> >
> > This would make a great exam question.
>
>
> Maybe one of your industrious students will see the post and be rewarded
> with the question on one of your exams!
>
> So, while we are on this exam question kick, here is a real life "exam
> question" for a non profit, for which I do pro bono, and for which I did not
> have a great answer:
>
> 2 Non Profit Organizations (NPOs) meet and agree to put on a joint theatre
> play which consists of short "sketches." Neither of them enter into any
> agreement, however, both received grants for funding, and the grant
> application indicated it was a "collaborative" effort between them.
>
> Each NPO has written scripts for some of the sketches, the scripts are
> created by high school actors in a collaborative process. The NPOs agree
> before the project begins, to collaborate and edit the sketches into a
> cohesive play, that will flow from one sketch to the next. They exchange
> some ideas, they discuss to some extent the "theme" of each sketch, they
> talk about some ideas for transitions etc, however, neither shares the
> written scripts with the other right away.
>
> NPO 1, using the ideas, revises the sketches and scripts being contributed
> by NPO 1, and sends them over to NPO 2, and then tries to schedule times to
> meet and collaborate on creating the scripts for the entire play and to
> incorporate NPO 2's sketches. Here is where it gets weird. NPO 2 goes dark
> (as in will not meet), and no actual collaboration takes place. However,
> NPO 2 produces a compiled play script, containing some of NPO 1's scipts
> (but revised), and NPO 2's own scripts.
>
> The high school kids put on the play to rave reviews, and the director of
> NPO 1 video tapes the entire thing, apparently without previously telling
> NPO 2 that it would be taped. NPO 2 finds out about the tape, and claims
> that the copyright in the entire play is solely owned by NPO 2, and the
> copyright in the tape is a derivative work, also owned by NPO 2 (actually,
> not sure they claimed this).
>
> The director of NPO 1 wants to copy the tape, and distribute it, for a
> fee, to the parents of the students in the play; and to publicly display the
> tape (as in viewing) to the parents at a school function. The parents would
> make a donation to the NPO and receive the tape as part of the "benefit."
>
> There are a host of issues in this hypo, but the main issue was whether
> NPO 1 could distribute the video of the play to the parents, and charge for
> it, or offer it as a benefit on a donation, and whether they could hold a
> viewing of the tape at the school. Both NPOs are 501(c)(3)'s.
>
> I cannot say what my advice was, but I can say that this was a mess,
> copyright ownership, fair use, license and joint authorship - wise. As I am
> not making any fees on this, I would graciously accept anyone's take on the
> facts, as to whether NPO 2 would have a right to distribute the video tape,
> or to hold a public viewing of it at the school.
>
> --
> Mike Oliver
> Bowie & Jensen, LLC
> 29 W. Susquehanna Ave.
> Suite 600
> Towson, MD 21204

-- 
Vance R. Koven
Boston, MA USA
vrkoven[_at_]world.std.com