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

It strikes me that a close examination of the standards for joint authorship and the implications thereof is in order. On the basis on what you have provided, it sounds like both NPO's are likely to be deemed joint authors if it gets to some tribunal, and the implications from that might center around revenue-sharing, not whether fees could be charged. Under this assumption, both NPO 1 and 2 would have rights in the "joint work", perhaps with a duty to account, rather than ask permission.  

But, as you suggest, such determinations are heavily fact-dependent, if not also "intention dependent."  

Good luck!  

Rollie  

Roland J. Cole, J.D., Ph.D.
Director of Technology Policy
Sagamore Institute for Policy Research
340 West Michigan, Canal Suite B
INDIANAPOLIS IN 46202
317-727-8940; rollie@sipr.org; www.sipr.org <http://www.sipr.org/>  

From: CNI-COPYRIGHT -- Copyright & Intellectual Property [mailto:CNI-COPYRIGHT[_at_]cni.org] On Behalf Of Mike Oliver Sent: Wednesday, January 17, 2007 5:55 PM To: CNI-COPYRIGHT -- Copyright & Intellectual Property Subject: [CNI-(C)] Copyright Exam Questions [was "State trooper lays claim to software he developed"]

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