Disqus - Latest Comments for joegratz

Re: Wedding Phtography and Copyright Release

joegratz — Wed, 24 Sep 2008 17:42:14 -0000

Copyright assignment and "works for hire" are very different. What's needed here is an assignment of the copyright by a written agreement. Work for hire in the context of a specially commissioned work like this (rather than a work by an actual employee in the scope of employment) only applies when the work is:

"a work specially ordered or commissioned for use as a contribution to a collective work, as a part of a motion picture or other audiovisual work, as a translation, as a supplementary work, as a compilation, as an instructional text, as a test, as answer material for a test, or as an atlas, if the parties expressly agree in a written instrument signed by them that the work shall be considered a work made for hire. For the purpose of the foregoing sentence, a “supplementary work” is a work prepared for publication as a secondary adjunct to a work by another author for the purpose of introducing, concluding, illustrating, explaining, revising, commenting upon, or assisting in the use of the other work, such as forewords, afterwords, pictorial illustrations, maps, charts, tables, editorial notes, musical arrangements, answer material for tests, bibliographies, appendixes, and indexes, and an “instructional text” is a literary, pictorial, or graphic work prepared for publication and with the purpose of use in systematic instructional activities. " 17 USC 101.

So a work for hire agreement might well not effectively cause copyright to end up in Tim's hands. Assignment is what's needed instead.

Re: 'This Book May Not Be Sold'

joegratz — Sat, 12 Jul 2008 12:09:50 -0000

Interesting issue! What's really fun there is that the actor has a decent claim to be a co-author of the DVD, and thus might be privileged to make and sell all the copies she wants (subject to an accounting to the other co-authors).

Consider contract rather than copyright as the means of enforcing the theater company's norms.

(And consider whether the theater company's license to produce the play permits videotaping and distribution of copies to actors at all. Many such licenses don't.)

Re: 'This Book May Not Be Sold'

joegratz — Sat, 12 Jul 2008 11:56:49 -0000

Correct -- that's pretty well-established, via the Basmajian case in SDNY and the UMG v. Augusto decision we just got in CDCal about promo CDs.

I see no reason why it would be copyright infringement for a potential publisher reviewing a manuscript to sell the particular copy they were given. It's a copy owned by the recipient (absent some contract or other promise saying otherwise), and is freely alienable. As we saw in the UMG v. Augusto case, just asserting that industry practice requires the recipient to act in a certain way doesn't affect the first sale analysis.

As for the original question regarding A Writer's Reference, I think it presents an even easier case than Augusto. The student owns the book, and can sell it; the label notice does not affect who has title to the physical object, and thus doesn't affect first sale.

If the book was sold underneath a shrinkwrap license containing a term prohibiting resale, the story would be only a little different. In that case, if a student resold the book, I think the publisher would have a non-frivolous breach of contract claim against the student (though I think such a contract term should probably be voided on public policy grounds). But they would not, in my view, have a copyright claim against the student, since the sale would be shielded by the first sale doctrine.

Joe Gratz
(counsel for Augusto, but speaking only for himself)