Principles of Copyright Law – Cases and Materials

107

III. OWNERSHIP OF RIGHTS

photograph could be “authored”, or who could prop-erly be called the “author” of a

cinematograph film, the various cre-ative people who contributed to the final product or the

producer who organized the enterprise.

In the passage cited above, Stewart elides the issue of authorship and ownership of copyright and

has consequently suggested that a legal entity can be an author. Nothing in the RBC warrants

this conclusion. Authorship and ownership of rights in a work must be distinguished. Normally,

authorship implies ownership of rights in the work. This theory must however be accommodated

with the case of pseudonymous, anonymous or unknown authors, where a practical need exists

for someone, typically the work=s publisher, to vindicate rights on the author=s behalf. The RBC

expressly permits this. More difficult problems arise where an entity employs or commissions

an author: states often allocate ownership to the employer, using legal techniques varying from

vesting the copyright initially in the employer to creating an automatic assignment of rights from

the author to the employer. Pressures from indus-try and reasons of expediency occasionally

have caused states to go further and fictionally to define the author’s employer, normally a

corporation, not merely as owner of the copyright but also as author of the work. Although

functionally equivalent to theories of automatic assignment or initial vesting of copyright in the

employer, the latter technique seems inconsistent with [the] RBC’s basic principles and spirit,

especially if heed is not paid to the author’s moral rights. Moreover, it obscures the centrality of

the author in the scheme of the RBC and the implications to be drawn from this concept.

“Author” in the RBC implies a person who applies his or her personal creativity to produce a

literary or artistic work. As will be seen below, performers, sound recorders, broadcasters and

the like are neither “authors” nor do they create “literary and artistic works”. Performers,

however creative, only present a performance of a work, broadcasters do no better. Sound

recorders at best record the performance of a work, or at worst record an event in nature. In either

case, their work, however skilled, is essentially mechanical rather than creative.^1

• The provider of ideas is not the author of the resulting work;
  the person who gives expression to the ideas is the author

Recall Donoghue v. Allied Newspapers Ltd [1938] Ch. 106 (U.K.: High

Court), where the issue was whether the journalist or the person whom he was

interviewing was the author of the article later published in the newspaper. The

court said that:

there is no copyright in an idea, or in ideas. A person may have a brilliant idea for a

story, or for a picture, or for a play, and one which appears to him to be original; but

if he communicates that idea to an author or an artist or a playwright, the production

which is the result of the communication of the idea to the author or the artist or the

playwright is the copyright of the person who has clothed the idea in form, whether

by means of a picture, a play, or a book, and the owner of the idea has no rights in

that product.

In other words, the author is the person who gives a work the form in which it

is expressed, not the person who provides the ideas for the work.

• The author of a photograph is usually whoever takes the shot

Creation Records Ltd v. News Group Newspapers Ltd, (1997) 39 I.P.R. 1

(U.K.: High Court)

1 ...The doctrinal arguments are of
course overdrawn. Performers and
sound and film technicians are often
as creative in their métieras authors.
Doctrinal fundamentalism expresses
a different reality. The political and
economique reasons why individual
authors need rights over their works
differ from those that organizations,
typically the entities producing
movies, broadcasts and records, can
proffer for protection. Modigliani and
Van Gogh present more pressing
cases for kindly solicitude than does
the British Broadcasting Corporation
or Twentieth Century Fox.
Composers also feared that the grant
of authors’ status to performers
would result in the formers’ income
being diminished: a pie can only be
divided a finite number of times.
These truths can conveniently be
obscured so long as resort to high
principle is successful.