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III. OWNERSHIP OF RIGHTS
to embody the expression in a copy. The definition, however, has limits. When one authorizes
embodiment, that process must be rote or mechanical transcription that does not require
intellectual modification or highly technical enhancement... Poets, essayists, novelists, and the
like may have copyrights even if they do not run the printing presses or process the photographic
plates necessary to fix the writings into book form. These writers are entitled to copyright
protection even if they do not perform with their own hands the mechanical tasks of putting the
material into the form distributed to the public. ...[Authorship of a sound recording may] apply
not only to the performer, but also to the producer responsible for setting up the recording
session, processing the sounds and compiling and editing them to make a final sound recording.
In some cases, however, the record producer’s contribution could be so minimal that the
performance is the only copyrightable element in the work. ... [However, the] solitary act of
“setting up the recording session ... is no more an act of ‘authorship’ than is the act of one who
makes available to a writer a room, a stenographer, a typewriter, and paper.”[The plaintiff]
testified that he expressly directed the copy’s preparation in specific detail. His compilation
needed only simple transcription to achieve final tangible form. [The printer’s employee] acted
as his amanuensis just as does a stenographer in typing material dictated by another person.
...[N]one of [the plaintiff ’s] activities in any way intellectually modified or technically enhanced
the concept articulated by [the plaintiff] other than to arrange it in a form that could be
photographed as part of the embodiment process. Moreover, when [the printer’s] employees
printed the maps they did not change the substance of [the plaintiff ’s] original expression.
...[W]e conclude that the activities to which [the plaintiff] testified qualified him as an author
within the copyright statute’s requirements.
- A person who relies entirely on another to create the work is not
an author
One may contrast the Andriencase, mentioned above, with an earlier U.K.
case where a person had the idea of creating a voting card for illiterates, by
drawing a hand holding a pen making a cross in a box. Not himself being able
to draw, he asked an artist employed by his firm to make such a drawing. The
employer clearly had the right to decide whether to adopt the finished product
or to throw it away. Nevertheless, when the employer, claiming to be the sole
author of the work, sued a third party for copyright infringement, the court
dismissed the action because it could not accept his claim to sole authorship:
Kenrick & Co. v. Lawrence & Co. (1890) 25 Q.B.D. 99 (U.K.: High Court)
MR JUSTICE WILLS:
I do not see how a gentleman who is incapable of drawing even such a very simple picture as a
rough sketch of the human hand, and who did not, in fact, set pencil to paper in the matter, can
be called the author of the drawing. He suggested the subject, and made such limited suggestions
as to the treatment as the subject admitted of; but it seems to me that, in an Act which gives
copyright to drawings, the author must mean a person who has at least some substantial share in
putting the touches on to paper. ... I cannot understand how the man who did all that was done
in the way of drawing can be excluded from all participation in the authorship of the thing drawn
by him.
- The translator is the author of his translation
An unusual case in which a translator was found to be an author concerned a
medium who allegedly received messages from another world:
