Re: joint work/U.S. govt.

Robin W. Edwards <r.w.edwards[_at_]larc.nasa.gov> wrote:
>
> 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)??

     I would like to re-emphasize the point that Mark Lemley made. In 17 USC section 101, a "work of the United States Government" is defined as "a work prepared by an officer or employee of the United States Government as part of that person's official duties." So as long as the government employee wasn't acting in his or her official capacity, the problems you raise would not arise. The resulting co-authored work would just be a joint work like any other. This strikes me as by far the most likely scenario in the situation you describe.

     The problem would arise only if the government contributor was acting in his or her official capacity. I suppose it could happen if, say, a government employee solicited the help of a friend in working on some government report, and the friend later wanted to claim copyright in the final report. I don't think that would fly, because the purpose of Section 105 is to assure that official government publications are freely available to the public. In such a situation, I think a court would simply find that the non-government contributor intended his or her contribution to be merged into the government work. I have difficulty imagining a hypothetical in which the government contributor was acting in an official capacity, but the resulting work was not something to which the policy of section 105 would apply.

Caveat: This is indeed an off-the-top-of-my-head opinion. I certainly haven't done any research on the issue. :-)

Tyler T. Ochoa
Associate Professor
Whittier Law School
tochoa[_at_]law.whittier.edu Received on Fri Mar 20 1998 - 00:48:20 GMT