Creation as Collaboration :
Looking at Joint Authorship in Theater Production
Devorah Katz
1
TABLE OF CONTENTS
INTRODUCTION
3
PART ONE: FOUNDATIONS OF COPYRIGHT
7
:
Lockean Natural Rights Doctrine and the Labour Acquisition Theory
7
Structural Explanations of Copyright
9
Copyright as part of the Private vs. Public Domain
10
PART TWO: ESTABLISHING JOINT AUTHORSHIP IN THEATER PRODUCTION
12
The Doctrine of Joint Authorship
12
The Determination of Intent
15
What is a Copyrightable Work?
18
PART THREE: LOOKING FORWARD
21
Revisiting the Childress Test
21
Increasing the Bargaining Power in Contracts
23
BIBLIOGRAPHY
26
2
The laws of copyright in both the United States and Canada are fundamentally tied to the
doctrine of originality in creation and expression. This is not only established in the statutory
language of both Copyright Acts1 but also in the contemporary copyright jurisprudence that
follows. The notion of originality in copyright has a particular connotation of a singular
creator2which reifies an assumption of bilateralism between the author and her work and thus
placates the role of the public, or 'external' contributors, in the production process. Put simply,
"the individuality and originality of authorship establishes a single route towards ownership and
the propertization of creative achievement"3.
In viewing the process of creation this way, the theory of copyright minimizes the idea of
craftsmanship in the creative process. In doing so, it downplays the role of collaboration in
creation and therefore overlooks how the creative process can be seen as a vehicle for an
'aggregated' expression. As such, the theory fails to attribute recognition to different sources
which helped both inspire and construct the creative work in question. Instead, the current US and
Canadian notion of authorship elevates an idea of a singular genius in originality which
necessitates isolation in the inspiration and production process4. As a result, the construction and
application of Canadian and U.S. copyright law today, particularly with respect to the doctrine of
joint authorship, prejudices an idea of an intellectual work as distinctively the product and property
of a singular and isolated author.
1
US Copyright Act. art. I, § 8, cl. 8. and Canadian Federal Copyright Act R.S.C. 1985, c. C-2.
A 'Singular Creator' or as some scholars have referred to as a 'first mover' - implicitly drawing in an theological
perspective of the authoritative nature of the relationship between author and his or her work.
3
Carys J. Craig, “Locke, Labour and Limiting the Author’s Right: A Warning Against A Lockean Approach to
Copyright Law” (2002) 28 Queen’s L.J at 14.
4
Anne Jamison, “Collaboration vs. Imitation: Authorship and the Law” (2006) 18:2 Law and Literature 99 at 102105.
2
3
The difficulty in enabling this one-dimensional approach to understanding authorship is
that in many cases the creative process involves more than just the creator working in the solitary
confines of her private quarters. By encasing a notion of creative expression in the language of
personal property, both the law and the courts fail to account for other sources of inspiration and
contribution that might have been instrumental to the materialization of creative work. In the
majority of cases, the creative process is a far more textured and nuanced than the simplistic idea
of one individual creating in a vacuum. At the heart of the notion of authorship, "lies an ongoing
and arguably inherent contradiction engendered by the initiation of copyright law and its
subsequent implementation"5. As is stated in Théberge, a recent Canadian case regarding the right
to make copies of a creative work,
The purpose of copyright law was to balance the public interest in promoting the
encouragement and dissemination of works of the arts and intellect and obtaining a just
reward for the creator.6
However, the standard that both US and Canadian courts employ for determining originality
merely requires that something be more than a mere copy or, that an individual show some level of
industriousness to ground copyright in a work7. In setting the test this way, the type and amount of
effort that the author needs to establish copyright protection is left undefined.
For the purposes of this paper I will explore the copyright laws and jurisprudence
pertaining to theater production. This is a very fertile area for looking at the development and
application of copyright law today and the rules surrounding the establishment of joint authorship.
However, in examining this area, my focus will mainly be on American law and jurisprudence as a
blueprint for the Canadian treatment of copyright in theater. This is primarily because there has
5
Ibid. at 14.
Théberge v. Galerie d’Art du Petit Champlain inc., [2002] 2 S.C.R. 336, 2002 SCC 34 at para 8.
7
David Vaver, Intellectual Property Law, (Canada: Irwin Law, 1997) at 52-54.
6
4
been far theater production originating in the United States. Accordingly, the American courts
have had far more experience in addressing issues surrounding joint authorship in theater
production, and it is from these decisions, that Canada borrows much of its current law.
The “limited times" provision of the U.S. Copyright Act8 provides authors with quasi minimonopolies for their copyrighted works in theater. This provision has been designed to provide
incentives for subsequent authors to create new works9. As such, the only person to whom it is
clear that she will have exclusive control of her work in the industry is the playwright10. Those
hired at the beginning or throughout the production process, like dramaturges and designers are left
to fend for their inventions on their own, without any implicit copyright over the works that they
contributed to the creative project.
On first look, this system of copyright allocation does not appear unjust. However, on
further examination of the extent to which the creative contributions of both dramaturges and
designers change the nature and substance of the final theater production indicates a need for
revision of the copyright laws. Put simply, if the final creative product fundamentally reflects
more than just the work of the sole author and, the dramaturges and designers have had played an
indispensable role in the creation of that work, than why should these contributors not benefit from
(at least partial) copyright over that work?
In considering possible answers to this question, this paper will examine the concept of
originality in copyright and the potential areas of the law that might be extended to include
8
US Copyright Act. art. I, § 8, cl. 8.
9
See Eldred v. Ashcroft, 537 U.S. 186, 260 (2003).
Roberta R. Kwall,“Author-Stories: Narrative’s Implications for MoralRights and Copyright’s Joint Authorship Doctrine" (2001),
75 S. Cal L. Rev 1 at 25.
10
5
protection for collaborators in theater production. The discussion will be divided into three parts.
This discussion will be divided into three parts. The first section will provide a brief literature
review of the legal discourse surrounding copyright law. In doing so, I will outline two distinct but
inter-related approaches to looking at copyright law exhibited in most of the scholarship to date.
The first theory will look at the Lockean doctrine of natural rights in the copyright context. Here, I
will examine how the concern over the 'fruits of ones labour ' creates a clear sense of the legal
supremacy of the original singular creator. Second, I will outline a Marxist structuralist approach
to understanding copyright law. In particular I will focus on how political structures of power
control the relationship between the author and her work and the kind of rights established as a
result. Furthermore, I will examine how this determination of copyright law promotes a separation
between private and public domains. More specifically, I will explain how the dominant capitalist
system of power favours the private reward of a singular author over the larger public benefit11.
The second section of this paper will examine the holes that both the Copyright Act and
courts’ decisions have left for dramaturges and designers in obtaining copyright over their
contributed works. To do so, I will outline the two part legal test for determining joint authorship
as laid out in Childress v. Taylor12. This case is used as a legal baseline for contemporary
interpretation and application of copyright law. Here, I will examine the intent requirement for
establishing a joint work. As such, I will assess the standards for determining intent and the way
in which the interpretation of this requirement has set out a high threshold for dramaturges and
designers to satisfy this condition. In looking how the legal test creates a bias towards a notion of
originality in authorship, I will demonstrate how the jurisprudence in the area of theater production
11
Anonymous. (2001), "Exploitative Publishers, Untrustworthy Systems, and the Dream of a Digital Revolution for
Artists" 114:8 Harvard Law Review 2438 at 2444.
12
Childress v. Taylor [1991] 945 F.2d 500 (2d Cir.)
6
ultimately champions the author’s rights at the expense of a more inclusive and multi-faceted
assertion of copyright protection.
The final section will propose possible solutions to getting around the problems of
exclusion created by the laws of joint authorship. I will first argue that the application of the legal
test for establishing joint authorship needs to be expanded as to include categories of claimants
who have partial copyright interest in a work. I will also argue that the theater industry could
stand to gain from adopting the film industry's use of the "work for hire" doctrine. In doing so, I
will illustrate how both the individual contributor and the theater industry as a whole could stand
to gain from the implementation of this doctrine.
PART ONE: FOUNDATIONS OF COPYRIGHT
Lockean Natural Rights Doctrine and the Labour Acquisition Theory
The predominant approach in the academic copyright literature explains that the notion of
copyright is grounded in two separate but connected assumptions derived from a Lockean theory
of private property13. The first is that copyright views the act of creative production and the
derivative right over that which is produced as a one dimensional process of acquisition. The
author is construed as an independent agent who comes to obtain rights over her produce through
the mixing of her labour with the material used for production. Labour is the critical component
which links the author's entitlement to the product created. The resultant natural entitlements to
that product are thus cultivated through the labour invested in the work. As we find in Locke's
Second Treatise on Government, "labour gives a man a natural right of property in dial which he
13
Supra note 3 at 14-16.
7
produces: literary compositions are the effect of labour; authors have therefore a natural right of
property in their works"14.
Correspondingly, the second assumption stems from this concept of natural rights. Here,
legal protection afforded to the author is based solely in the tangible expression of the idea and not
in the idea itself15. The rights are innately designed to protect the property which has been
harvested through the labour of the author and not the intangible dynamics which might have
contributed to both the inspiration and expression of the work. Copyright law has articulated that
which we assume from the natural acquisition theory. Accordingly, we reason that in order to
provide incentive for creative development and innovation, the law must seek to provide
safeguards against wrongful entitlement or unjust enrichment from others who try to share in the
proceeds of the works created by sole authors16.
However, the philosophical foundations of copyright do not spring forth from nowhere, but
rather reflect the nature or character of the political and social systems which govern the
production and distribution of property17. To substantiate this point, David Lametti argues that the
modern connotation of authorship is an outgrowth of an overall power structure which has situated
intellectual property as relational object of social wealth18.
14
John Locke, The Second Treatise on Government, published online at
http://ebooks.adelaide.edu.au/l/locke/john/l81s/. Please note that this is case in point of my overall argument that there
has been a shift in the digital medium from a pre-occupation with private interests to a more inclusive domain of
publicly shared cultural space.
15
Supra note 2 at 16.
16
Abraham Drassinower, "Taking User Rights Seriously" in Michael Geist ed., In the Public Interest (Toronto: Irwin
Law, 2005) at 45-55.
17
David Lametti, "The Concept of Property: Relations through Objects of Social Wealth", (2003) 53:4 University of
Toronto Law Journal 325 at 325-330.
18
Ibid. at 333.
8
Structural Explanations of Copyright: Intellectual Property as Subject vs. Object
This second theory focuses more on the structures of power which determine the way we
understand and administer copyright protection. Borrowing from H.L.A Hart who argued that
private property was socially constructed and a politically administered phenomenon, Lametti
argues that we can understand intellectual property as fundamentally relational in that its
conception and attributed legal value are by definition subject to the ways in which structures of
power control and distribute ownership19.
To ground this theory in reality, Paul Geller points to an illustration of the rise of copyright
law at the turn of the 18the century in England with the fall of feudalism. During the feudal
period, the English landed gentry cultivated and patronized the arts and thereby owned title to the
products extracted from their land. As such, writers (and other creators of artistic works) enjoyed
merely the attribution to their works. Intellectual property was essentially subject to the bodies of
power which physically controlled the distribution of goods20. Here, Paul Geller articulates,
"writers served their patrons as craftsmen and the patron symbolically took title to a work he
endorsed in exchange for hospitality and financial compensation"21.
However, with the rise of the institutional publisher and growing book trade, authors began
to assert their independence from the control of the Crown. The Statute of St. Anne22 reflected this
shift, as Parliament, [1] allowed for independent copying and distribution of works and [2]
provided a 14 year transferable copyright to authors in their works. However, lacking the capital
19
Ibid at 349; also see H.L.A. Hart The Concept of Law (UK: Oxford University Press, 1961) in his discussion of
private property as social construct in Chapter One.
20
Paul Edward Geller, "Copyright's History and Future: What's Culture Got To Do With It?" (2000) 47 Journal of
Copyright Society and the USA 209 at 257-260
21
Ibid. at 258.
22
Statute of St.Anne 1701.
9
and power to self-distribute, the author was still forced to submit all ownership of their works to
third party printers, and in doing so, essentially relinquished their capacity to profit from the fruits
of their labour23.
This example demonstrates that as a subject of social wealth, intellectual property is
essentially contextual and relational in nature. Accordingly, the laws which establish and maintain
copyright protection directly mirror the location of author in relation to the seats of political
power24. Correspondingly, in this example, as the author moved away from the Crown's control
and gained more independence as title holder, the concept underlying intellectual property itself
shifted. The property which was once essentially subject to the determination of Crown became
more of an object owned and controlled by the author independent of the Crown25.
Similar to a Marxian depiction of the social and political dynamics underlying private
property, for Lametti, copyright, like other works of intellectual property, specifically refer to "the
things or valuable resources that are subject mater of the property relationship"26. Thus, in order to
understand the ways in which we have attributed value and corresponding protection for creative
works, it is essential that we look at the structures which have defined the location of author to the
fruits of her labour.
Copyright as part of the Private vs. Public Domain
To corroborate this structuralist theory of copyright, Deborah Halbert argues that
throughout the development of copyright law in both US and Canada, the structures of power
23
Supra note 21 at .261-265.
Ibid. 263
25
Neil Weinstock Netanel, "Copyright and a Democratic Civil Society" (1996) 106:2 Yale L.J. 283 at 295.
26
Supra note 12 at 327
24
10
which have defined the author's relationship to her work have primarily sought to segregate the
domain of private property from the public sphere27. Driven by a capitalist system of power,
copyright law has been structured in a way that polarizes private individual reward in property
from the larger public domain. To maintain and legitimize these structures of power, copyright
law has "had to both produce and legitimize a particular kind of author, usually singular and
involved in an individualized endeavour to produce works of an original nature"28. The singular
author is therefore viewed as fundamentally separate from the public domain and other external
sources of influence. Copyright law is geared to protect this private interest and in doing sacrifices
the protection of the public interest in gaining access to these 'private' works.
Consequently, copyright law also deems who is a "real" author and who is not, on a rightsbased justification of property that tends to afford the existing private structures of control the
power to make these kinds of distinctions. Put simply, the Canadian political structures in power
today are governed by a capitalist mode of property distribution. Accordingly, the laws which
enable the protection of intellectual property, namely copyright, commodify art and knowledge in
a way that conflates intellectual property with all other kinds of material private property29. The
ideals of private interest in property are therefore played out in the propertization of creative
expression. The author in her work is seen as an analogous to any other material property holder,
who bears no responsibility for the welfare or interest for the larger societal whole.
The separation of private and public domains within copyright doctrine, and the
corresponding preoccupation with a singular original author, also has a corollary effect of
27
Deborah Halbert, "Feminist Interpretations of Intellectual Property", (2005) 14:3 Journal of Gender, Social Policy
and the Law 432 at 449.
28
The term "original" as defined by Canadian and US courts, see Theberge para 34-40.
29
Supra note 12 at 361.
11
downgrading the notion of a plural author. Contemporary American and Canadian case law
reflect this fact, as Anne Jamison argues,
Contemporary cases are still proving (that) this disavowal of other kinds of authorship
(namely joint) is inextricably linked with a legal discourse emanating from eighteenthcentury's invention of copyright law and the aesthetic debates concerning notions of
originality that surrounded that law's inception30.
In light of this, the overwhelming trend towards adopting these traditional conceptions of a
singular original author, is an indication that the scope of US and Canadian case law needs some
readjustment. If we can encourage a greater acknowledgement of this in our decisions, the binary
approach of singular versus plural, or more generally private versus public, will no longer
automatically deem the latter as inferior31.
PART TWO: ESTABLISHING JOINT AUTHORSHIP IN THEATER PRODUCTION
The Doctrine of Joint Authorship
The notion of ownership in the US Copyright Act stipulates that copyright “vests initially
in the author or authors of the work.”32 Accordingly, the author is seen as the person who creates
the idea for the creative work and expresses his original idea in a “fixed, tangible” medium33. The
law seems to directly articulate the Lockean notion of authorship outlined in the last section. This
idea appears to be simple, however, there is much debate that surfaces from its application. How
are we to determine the original author of a creative work? When the productive process has
30
Supra note 3 at 18.
Ibid at 120.
32
US Copyright Act 17 U.S.C. § 201(a) (2005).
33
Committee for Creative Non-Violence v. Reid [2005] 17 U.S.C. § 201(a) at paras. 121-129.
31
12
involved a number of different contributors who have played an instrumental role in helping to
create the finish product, who do we rightfully attribute copyright protection?
The complexity of this issue was addressed in the recent US case of Lakedreams v.
Taylor34, wherein the defendant was hired to silkscreen the plaintiff's designs onto t-shirts. The
defendant subsequently re-produced and sold the identical t-shirts for profit, and received
copyright protection in the work35. In addressing the notion of collaboration in the creative
process, the court in favour of the plaintiff argued that a person can be acknowledged as the author
of a work and obtain copyright protection even though "he did not perform with [his] own hands
the mechanical task of putting the material into the form distributed to the public."36 In light of this,
what is required of an author, as interpreted by federal court decisions, is that she contributes
copyrightable material37.
The interpretation of authorship as adopted in Lakedreams could likely create challenges
for the theater industry, specifically because the nature of theater production is collaborative.
There is inexorably more than one person who contributes to the end product. The list of
contributors include: the director, producer, designers and writing assistants, or dramaturges, to
name a few. According to the reasoning in Lakedreams, each participant could potentially for
copyright protection in their own piece of the project. However, it is clear that the theater industry
did not intend this legal consequence. The widely held practice to date is to treat these
contributors as independent contractors, and thus allow for sole ownership over copyright to be left
with the 'original' creator138. The primary issue that stems from this allocation of copyright is what
34
Lakedreams v. Taylor, [1991] 932 F.2d 1103 (5th Cir.)
Ibid at 1105-1106
36
Supra note 35 at 1106
37
Ibid at 1108 (citing Andrien v. S. Ocean County Chamber of Commerce, [1991] 27 F. 2d 13, 15 (3d Cir.))
38
Jeffrey M. Dine, "Are the Cats Out of the Bag? Lessons from the Makeup Designer’s Case", (2001) 19
Entertainment and Sports Lawyer 3 at 53-55.
35
13
constitutes joint authorship of a theater production? When there are so many members of the
creative process that serve indispensable roles in helping to create the finish product, how is this
legal treatment fair?
The US Copyright Act defines a joint work 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.”39 In an attempt to delineate how joint authorship should be established the case of
Childress v. Taylor40, provided a two-part test. This test has been widely used as a legal
foundation for subsequent cases of joint authorship in allowing for a supposed co-author to obtain
ownership in her work.
The test specifies the standards for establishing joint authorship as follows: First, all
contributors must have fully intended at the time of creation to be a co-author of the work in
question and, second, all contributors must have participated in the creative process independently
and produced copyrightable portions of the work41. In Childress, the court held that the defendant
was not a joint author of the plaintiff’s work because she had merely researched material for the
play and among other things, structured the plot and dialogue.
The Canadian Copyright Act directly reflects the US treatment of joint authorship. The Act
stipulates that "an author is considered the person who puts ideas into their copyright form"42. As
such, the "ideas people", or others who collaborate in the process of expression, are generally
considered outside of purview of copyright protection unless there is expressed intention of joint
39
US Copyright Act [2005] 17 U.S.C. § 101.
Supra note 12.
41
Ibid at 505-507
42
Supra note 6 at 52
40
14
authorship43. Accordingly, in s.2 of the Canadian Copyright Act the work of joint authorship is
defined as,
A work produced by the collaboration of two or more authors in which the contribution of
one author is not distinct from the contribution of the other author or authors.44
By defining the term this way, the Canadian law, like the US law, also requires that the
collaboration of two or more authors be both intentional and expressed45.
A Determination of Intent
Intent of co-authorship is an essential ingredient in the determination of a joint work.
However, without a clear written agreement between the different collaborators in a work, the US
and Canadian courts have viewed the intent requirement as a nearly impossible pre-condition to
satisfy. The issue surrounding the determination of intent is addressed quite specifically in the
recent US case of Thompson v. Larson46. This case involved the claims made by a dramaturg who
argued that she had co-authored the musical Rent . In this case, the author, Jonathan Larson, had
written the original play and was having the production produce by the New York Theatre
Workshop (“NYTW”).
Lynn Thompson, who was a literature professor at New York University, was hired to help shape
and form the plot47. The agreement between NYTW and Thompson stated that she was to be billed
as the “dramaturg" and therefore her contribution was seen, from a legal standpoint, as an
independent contracted work48.
43
See Vaver discussion of New Brunswick Telephone Co. v. John Maryon International Ltd. (1980), 33 N.B.R. (2d)
534 (C.A.) 2426-7537 at 534.
44
Supra note 1 s.2.
45
Supra note 12 at para 25-30.
46
Thomson v. Larson, [1998] 147 F.3d 195 (2d Cir.).
47
Ibid at para 197.
48
Supra note 47 at para 198.
15
However, shortly after the dress rehearsal, Larson died and Thompson completed the book
of the musical.30 At this point in the production, Thompson had not signed a waiver handing over
copyright interest in the finished work49. Despite the fact that Thompson had contributed
significant copyrightable portions to the end result, the court found that Rent had not been a joint
work. They argued that there was no expressed indication that Larson ever intended Thompson to
be a joint author. Rather, his intention was that she be merely an editor of his original work. In this
decision, the court reaffirmed Childress, and rejected Thompson’s argument that the intent
requirement need only be met when an author has made minimal contributions50.
Furthermore, in applying the law surrounding joint authorship, the court adopted a narrow
interpretation of the law. They affirmed that in order to be characterized as a joint author, an
individual must show two things: first, that he or she produced independent copyright material
within the context of the creative process and second, that both individual authors exhibited mutual
intent to create the joint work51. This court did consider a broader conception of what 'authorship'
entails by looking at Thomson's work in its own right. However, the court argued that, despite
Thomson's significant contribution to the development of Rent, Thompson's claim was ill-based
and without a clear demonstration that Larson knowingly intended to share the playwright credit
with her.
In failing to provide Thompson with a statutory accommodation of co-authorship, the court
pinned the subjective intentions of one author against those of the other, thereby turning a
determination of the statutory rights of the parties into a power struggle52. In doing so, the
Thomson court paved the way for a collaborator to appropriate for herself all rights to a work of
49
Ibid at para 198.
Supra note 47 para 202
51
Ibid at para 37.
52
Supra note 39 at
50
16
collaboration by simply refusing to acknowledge that the other person collaborating on a
copyrightable work is a co-author. Accordingly, whether or not the parties act as joint authors
becomes irrelevant.
To many legal scholars, the Thomson decision reaffirms a disconcerting precedent for
future joint authorship cases in a reluctance to grapple with the fundamental objectives of
copyright itself. By examining only the outward manifestations of the collaborators' intentions,
Faye Buckalew argues "this court failed to give any weight to the collaborators' actions within
their partnership"53 and as such, overshadows any effort to present a reading of the statute that
would pay credence to the collective over the individual. To support this point, Seth Gorman
states that a more lenient interpretation of the statute would define joint authorship 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"54, thereby placing the work itself as the
focal point of analysis, and not the testimonies of one author.
What is clear from the court's holding is that the decision was narrow construction of the
intent requirement. By providing the 'sole author' with the power to exclude others, this decision
creates a great deal of potential controversy because it enables a system of free-riding. Put simply,
it establishes a precedent which allows the dominant author to entice other collaborators to donate
material to an original work without any intention of sharing the credit of the work. Furthermore,
as Christoper Yoo forcefully argues that,
The fact that someone wants to be a sole author does not necessarily mean that the person has
the skill to be a sole author. It is difficult to see why any one collaborator's intentions about
sole authorship should count if the work produced requires the intellectual effort of others55.
Faye Buckalew, “Joint Authorship In The Second Circuit: A Critique of the Law in the Second Circuit Followin
Childress” (1998) 64 Brook L.R. 545 at 549.
54
Seth Gorman “Who Owns Movies” (1999) 7:1 UCLA Entertainment L.R. 1575 at 1579.
55
Christopher Yoo, “Copyright and Democracy: A Cautionary Note” (2000) 53 Vanderbilt L.R. 135 at 142.
53
17
Clearly on the facts, Thomson had been incorporated into the project because of Larson's
inability to independently construct a marketable finish product. From this, we can likely conclude
that the combined intellectual contributions of both collaborators were instrumental to the success
of the finished product.
What is a Copyrightable Work?
In most of the cases dealing with joint authorship, the most difficult obstacle for the
plaintiff is determining an expressed intent to collaborate. However, the second part of the
Childress test can be equally as difficult to satisfy. The second part stipulates that in order to
discern whether the claimant has created her own copyrightable contribution in the work, it must
be clear that the portion of her contribution fall within the subject matter of copyright protection.
However this determination is far from clear.
In the area of theatrical design, the creative contribution is viewed mainly in its final form
but is critical helping to create the unique substance and character of the finished product. For
example, Tharon Musser’s ground-breaking lighting design for the first production of A Chorus
Line in 1975. This element of the production became widely seen as an indispensable part of the
production’s plot as each scene was determined by where the spotlight landed wherein each dancer
conducted their monologue56.
Likewise, a costume designer creates a costume plot, which details each costume for each
particular character in each and every scene. In this sense, a costume designer is in essence a key
component in the narrative of a play. They transform the emotions of a character into visual
56
Susan Keller, "Collaboration in Theater: Problems and Copyright Solution", (1986) 33 UCLA L. Rev 891 at 926.
18
imagery57. It is the costume designer's vision that allows her to capture the flavour of the theatrical
piece. However, despite this acknowledgement, the attribution of costume design as a
copyrightable work is quite difficult to establish58.
To satisfy the second requirement of the Childress test, the claimant collaborator must
establish that her contribution was a copyrightable work. This means that the work must be able to
stand alone from the finished product59. Accordingly, a creative collaborator will not be regarded
as a joint author unless her contribution “represents original expression that could stand on its own
as the subject matter of copyright.”60The court's determination as to whether a designer has
satisfied the basic requirement of joint authorship is not bias-free. The US courts have been
preferential to the notion of sole authorship and therefore have been reluctant to uphold a decision
for joint authorship in the case of designers. This is, for the most part, because the laws pertaining
to joint authorship, particularly as they apply to theater, remain quite vague. As such, it is difficult
to assert one's work as a copyrightable material under the US Copyright Act.
The amount of ownership a theatrical designer enjoys from his contribution for a
production depends on the designer's popularity and subsequent bargaining power61. For the most
part, The lack of protection for collaborative works in copyright law creates an undeniable
vulnerability for most designers. Too often, frugal producers will very little compensation for a
significant contribution in exchange for the designer’s name to
57
See Costume Designers Guild: http://www.costumedesignersguild.com/cdg-home.asp (visited March 27, 2008)
See Galiano v. Harrah's Operating Co., [2005] 416 F.3d. 411, 421 (5th Cir.) at para 119-122.
59
Supra note 57 at 933.
60
Cabrera v. Teatro Del Sesenta Inc. [1995] 914 F. Supp. 743. at para 764. In citing Childress, the court notes that all
joint authors must make a copyrightable contribution".
61
Supra note 57 at 926.
58
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be listed in the Playbill. It is usually wealthy and well-known designers who can demand any
worthwhile recognition for their contribution in the theatrical work. Moreover, it is only the rich
and famous designers who have the resources to bring a legal claim for an alleged infringement of
their work.
To combat the vulnerability that most designers face in claiming recognition, the United
Scenic Artists, a predominant labour union, is geared to provide copyright protection for designer's
contributions to a theatrical work62. The union demands that employers who employ their members
use their criteria to set their contracts. Their criteria entails that the terms of the contract are
explicit and that the designer stipulate before hand if she intends to contract her designs away to
the Producer of the theater production.
In the production of Love! Valour!Compassion!, a Broadway musical which debuted in
1995, the original director of the production filed a copyright infringement suit against a regional
Florida theater that had put on a subsequent production of this musical. The director, Joe
Mantello, argued that the Florida production, exhibited indistinguishable qualities, pertaining
specifically to staging, that copied his original Broadway production. Because the case was
dismissed on the grounds of lack of jurisdiction, the court never was forced to determine the issue
of whether Mantello's staging constituted a copyrightable work. However, subsequent to this case,
the original Broadway set designer also filed a suit against the Florida Theater. In this case, the
judge issued a ruling on a pre-trial motion entitling his decision “The Case of the Stolen Stage
Designs”63. This case marked the first attempt for the courts to provide a favourable ruling on
behalf of the claimant in a joint authorship case. Here, the court acknowledged the copyright
certificate for a theatrical set design and considered the area of stage design to be a copyrightable
62
See The United Scenic Artist; http://www.usa829.org (visited on March 30, 2008).
See David Goodman, Love! Valour! Compassion!, United Scenic Artists Local 829: http://www.usa829.org (visited
March 30, 2008).
63
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work64. This decision became a landmark case for the United Scenic Artist’s unending battle to
protect the creative works of their union members.
Although the doctrine of joint authorship attempts to provide some concessions for
alternative forms of intellectual creation and production, in the overwhelming number of cases,
some of which we have explored, there has been a general judicial reluctance to declare joint
authorship for claimants. To this effect, David Vaver argues that, "this reluctance, may spring
partly from the romantic view of author as Lone Genius"65. Furthermore, with such infrequent
application, the test for establishing joint authorship has also been left quite vague. As a result, we
are left with judicial decisions that ultimately fall short of providing a viable answer to the
collaborative dilemma.
PART THREE: LOOKING FORWARD
Revisiting the Childress Test
There are apparent tensions caused by the notion of authorship as a solitary isolated creator
and the growing realization that the creative process, especially in theater production, involves a
large amount of collaboration. In attributing copyright protection, the US and Canadian laws are
not expansive enough to include the valuable and indispensable contributions of both designers
and dramaturges. Instead, these contributors are left with nominal compensation and no copyright
protection, except for the anomalous cases. The question that we are left with, in trying to
64
65
Ibid.
Supra note 7 at 59.
21
formulate a legal solution that would help to broaden the scope of copyright, is how could revise
the laws to allow for these contributors to be given the legal protection they deserve?
In the decisions we looked at, the application of the Childress test created only two options
for the claimant seeking joint authorship rights. In setting up the test this way, a failure to meet the
two requirements, [1] intention and [2] proof that the work falls under the subject matter of
copyright, leaves the claimant with no authorial copyright interests. In other word, the Childress
test creates a binary system which "makes possible the idea of non-authorial copyright interests"66
In envisioning only two default categories of collaborators: joint authors and non-authors, the
courts have made it necessary for those without copyright interest to protect their work through
contract. However, as we discussed, most creative contributors have little bargaining power and
are often not in a position to request recognition in their work. As was stated in the Thomson case,
"collaborators themselves will rarely attempt the difficult task of identifying and valuing the
relative contributions that each made to the work"67. Accordingly, Childress leaves too much faith
in the power of the contract to provide collaborators with compensation and recognition.
More importantly, the Childress test has failed to accommodate specifically those
situations in which a party might, in absence of a contract, satisfy only the second copyrightability
part of the test. In light of this oversight, I think re-visited the application of the test is in order.
The courts must recognize a more nuanced understanding of collaboration in the creative process
and allocate copyright interest accordingly. It would seem a more just treatment of the doctrine of
joint authorship if copyright protection were pro-rated to account for partial contribution to a work.
Although contract negotiations play a vital role in allocating copyright interests between
collaborators, the copyright laws must provide a fairer default rule. Instead of non-authorial
66
67
Supra note
Supra note 47 at para 507.
22
copyright interest, the courts could employ an application of Childress as to account for such
foreseeable contingencies that individuals who fail to meet both requirements may still have
contribute copyrightable material to a collaborative work. A new 'third' category of 'part interest in
a work' may help to reconcile the difficulties faced in such a one dimensional treatment of the joint
authorship doctrine.
Increasing the Bargaining Power in Contracts
In lieu of such a modification to the application of the Childress test, there are potential
gains that could come from increasing the bargaining power of collaborators in contract
negotiations. Although this will not likely provide greater opportunity for collaborators to gain
copyright interest in their work, it may increase the amount of compensation and recognition that
they receive. I believe this could be achieved through the work for hire doctrine. In part, in s.101
of the US Copyright Act it outlines the law concerning work made for hire. Here the Act states as
follows:
s.101 work made for hire includes:
[1] A prepared work by an employee within the scope of his or her
employment or,
[2] A work specially ordered or commissioned for use as a contribution to
a collective work, as a part of a motion picture….
The work for hire doctrine is the dominant approach taken by the film industry in the United
States. Here, the act of discerning the author of a motion picture is far simpler than that of a
theater production. In film, a determination of authorship does not rest on the whether the
individual contributed a portion of their own creative expression. Rather, the copyright owner is
23
the producer or the production company that is making the film68.As a result, the individual
collaborators in the project, including the designers and the writing assistants, are aggregated into
one legal entity. Consequently, no one has claims to the copyright interest of the work except for
the producer69.
While this does produce some controversy around the movie designer's and writer's
inability to obtain copyright interest in their work, at least it makes the system a lot simpler to
understand. The difficulty with allocating copyright protection in theater is that it is far too
collaborative, it's hard to know when one person's work ends and another begins. As Susan Keller
notes that, "theater production should be viewed as a derivative work"70.
As it stands, the current method of adopted by the theater industry does not provide
collaborators with due credit and fair compensation. Rather, the uncertainty produced by
ascertaining where the copyright interest lies creates massive instability and usually leaves the
claimants of joint authorship in the 'non-authorial' interest category. Accordingly, embracing the
work for hire doctrine could resolve these difficulties caused by uncertainty.
In the work for hire doctrine, whereas the production company putting on the production
maintains the position as sole copyright owner, it implements a royalty structure so that an author
receives a set amount of royalty payments for his employment and then an additional fee based on
the amount of material he contributed to the end product71.152 The incentive provided to the
creators is that they may enjoy the security of regular employment which is a rarity in the theater
industry. Although this system would also preclude any of the co-authors from claiming a
68
Stuart K. Kauffman, (1999), "Motion Pictures, Moral Rights, and the Incentive Theory of Copyright: The
Independent Film Producer as Author,” 17 Cardozo Arts and Entertainment L.J. 749 at 70.
69
Ibid. at 74.
70
Supra note 57 at 936.
71
Ibid at 916.
24
copyright interest in the work, it would reward their individual efforts by providing adequate
compensation and security. In this way, an artist is would be afforded a clear economic right plus
rightful recognition. Either way, let credit be given, where credit is due.
25
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26
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27
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Other
Creative Commons Website found at http://www.creativecommons.org
Costume Designers Guild: http://www.costumedesignersguild.com/cdg-home.asp
The United Scenic Artist; http://www.usa829.org
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