Cite as 117 F.Supp.2d 301 (S.D.N.Y. 2000)
The starting point for any claim of joint authorship is the definition of “joint work” in the copyright statute. See, e.g., Childress v. Taylor, 945 F.2d 500, 505 (2d Cir.1991). 17 U.S.C. § 101 states: “A ‘joint work’ is 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.” The leading case construing this definition is Childress v. Taylor, 945 F.2d 500 (2d Cir.1991). In Childress, defendant asserted joint authorship of a play, despite the fact that she had not contributed copyrightable expression. The defendant claimed that one could be a joint author in the absence of such a contribution so long as the work as a whole was original. The Second Circuit rejected that argument and held that joint authors must contribute expression. See Childress, 945 F.2d at 507. The Childress court required that all joint authors contribute expression to “prevent some spurious claims by those who might otherwise try to share the fruits of the efforts of a sole author of a work….” 945 F.2d at 507.
Defendants assert that they are joint authors by reason of their creation of the frames. Their argument continues that the framed mirrors “constitute … ‘inseparable or interdependent parts …’ of the photographs.” (Defs.’ Br. at 15.) However, the copyrighted works at issue are the photographs, not the frames. If defendants’ theory were credited, then any photograph of any copyrighted sculptural work would automatically be a joint work between the photographer and the sculptor. Such a result would be plainly absurd.
In their supplemental submissions, defendants assert that their selection of the frames and their “right to control” the photographs after they were developed[1] creates an issue of fact about the parties’ intent to be joint authors.[2] (Defs.’ Supp. Br. at 8). It is no surprise that defendants selected the frames to be photographed since that is why they hired SHL in the first place. Mere selection of the subject matter to be photographed does not create joint authorship. Similarly, ownership of the physical embodiment of a work does not bear on ownership of the intellectual property in that work. The Copyright Act differentiates between ownership of the physical embodiment of a work and ownership of the intellectual property in a work:
Ownership of a copyright, or of any of the exclusive rights under a copyright, is distinct from ownership of any material object in which the work is embodied. Transfer of ownership of any material object does not of itself convey any rights in the copyrighted work embodied in the object….
To be a “joint work” under the Copyright Act, the authors must have “the intention that their contributions be merged.” 17 U.S.C. § 101 (1978). The requisite intent is “especially important in circumstances, [such as this case], where one person … is undisputably the dominant author of the work and the only issue is whether that person is the sole author or she and another … are joint authors.” Childress, 945 F.2d at 508; see also Thom-
- ↑ Defendants also state in their supplemental August 11, 2000 brief that plaintiff gave them the negatives. (Defs.’ Supp. Br. at 8.) Defendants do not cite to any sworn statement in support of this allegation. See Fed.R.Civ.P. 56(e); Skyline Corp. v. NLRB, 613 F.2d 1328, 1337 (5th Cir.1980) (“Statements by counsel in briefs are not evidence.”); Markowitz Jewelry Co. v. Chapal/Zenray, Inc., 988 F.Supp. 404, 407 & n. 18 (S.D.N.Y.1997) (same). In any event, transfer of the physical embodiment of a work is not evidence of joint authorship.
- ↑ The Court notes that defendants advance only three arguments regarding joint authorship: authorship of the frames, selection of the frames and “right to control” the photographs. Since defendants have had what is tantamount to three separate opportunities to move for summary judgment, these are the only arguments that this Court will consider.
