Principles of Copyright Law – Cases and Materials

(b) Right of attribution

The practice of “ghost writing” is common. Those who cannot write frequently

commission those who can to write a work that comes out under the

commissioning party’s name, with the name of the real writer suppressed. The

ghost-writer is nevertheless the author; he has, by contract, agreed to the

suppression of his name in favor of the commissioning party.

There may however be circumstances where the identity of the author is

important. Ghost-writing then may be deceptive and may invite sanction.

Whether a ghost-writer can later demand attribution is also an interesting

question.

EXAMPLE 1:

A patent attorney knowingly supported a patent application with a supposedly

objective article written by A when it was really written by B, a person

connected with the patent applicant. The U.S. Patent Office took proceedings

to ban him from practising as a patent attorney. The ban was upheld by the U.S.

Supreme Court: Kingsland v. Dorsey 338 U.S. 318 (1949). However, one of

the reviewing judges in the lower appellate court was sympathetic to the

attorney’s case:

Dorsey v. Kingsland, 173 F.2d 405 (U.S.: Court of Appeals, District of

Columbia Circuit, 1949):

JUDGE CLARK for the majority of the Court:

It is generally known that most Presidents and candidates for President employ assistants, who

not only engage themselves in preparing data and making suggestions for the speeches and state

papers of their chiefs but frequently participate extensively in the actual draftsmanship. Yet

seldom, if ever, in the delivery of the speech is attention called to the portions actually written

by the deliverer and the portions supplied by the assistants. It is not wholly unknown that the

judges of even the highest courts have law clerks, and that these law clerks are engaged not only

in research but frequently make most valuable suggestions as to the preparation of opinions, and

not infrequently participate largely in the actual draftsmanship of the opinion. Yet when these

opinions are handed down, no specific mention is to the paragraphs actually written by the judge

rendering the opinion and those written by the law clerk, or those inserted as a result of the

suggestions of other judges who may or may not have sat in the case.

EXAMPLE 2:

Smith, a script-writer, sued the defendant movie studio for breach of contract

by using his script for a movie without giving him screen credit. A majority of the

Court upheld a jury verdict for the plaintiff. A dissenting judge thought, however,

that the film was too different from the script that the plaintiff had submitted for

the plaintiff to get any credit:

Paramount Productions, Inc., v. Smith, 91 F.2d 863 (U.S.: Court of

Appeals, 9thCir. 1937)

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II. RIGHTS