joint work/U.S. govt.

Under 17 U.S.C. 101, a "joint work" is defined 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."

Under 17 U.S.C. 105, copyright protection is not available in the U.S. for "any work" of the U.S. Government, but the Govt can receive transfers of copyright (such as by assignment from its independent contractors). Various cases have addressed joint works, specifically whether the contribution of each joint author must be copyrightable or only the combined result of their joint effort must be copyrightable
(e.g., Childress v. Taylor, 20 USPQ2D 1191). At least some of those
cases have held the contribution must be copyrightable, so where one person's contribution is not copyrightable - there is no joint work - the only "author" is the contributor of copyrightable material.

Has anyone addressed the issue (or just have an off-the-top-of-your-head opinion) of the copyrightability status of an inseparable joint work where there is contribution (other than 17 USC 105, contribution of each person is copyrightable) by a nongovernment employee and contribution by a government employee (assuming nothing contractual which establishes, for example, a work for hire, arrangement)?? Specifically, whether

(1) the joint work is copyrightable in the U.S. by the nongovt

    contributor (assuming contribution by nongovt person is     copyrightable),

(2) the joint work is not copyrightable by either contributor in the

    U.S. due to 17 USC 105,

(3) the U.S. Govt could get copyright protection in the joint work if

    the nongovt contributor assigned his/her rights to the Govt,

(4) if there is a contract between the govt and the nongovt contributor,

    which gives unlimited rights in the work to the govt unless     permission to copyright is granted to the contractor, the govt could     get copyright protection in the joint work even though permission     was never requested or granted????

THANKS for any input!

  Robin W. Edwards			Patent Attorney                 
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