by Brenda Speer
This summer, I achieved the half-century mark. My friend and business associate, Danette Lilja, gave me this fabulous cake for my birthday. (I greatly enjoy cake, preferably white cake with butter cream frosting, which this cake was and it was...Yummy!)
I posted this photo on my personal Facebook page with the caption "I am an Original Work of Authorship!" The posting sparked a lively commentary banter among my lawyer friends and myself as to whether I was an original work of authorship. (Yes, we are intellectual property law geeks.) Here's my response to all of them.
Dear Esteemed Friends and Colleagues in the Law:
Your comments to my Facebook photo posting of my birthday cake have inspired me to respond in law-school-exam-essay fashion.
When I posted the photo, I claimed that “I am an original work of authorship!” I stand by my claim. You are all disputing whether I own the original work. My analysis and conclusion on these issues follows.
Let us assume for purposes of discussion that I do qualify as an original work of authorship under the US Copyright Act as a sculptural work. Otherwise, we can end the discussion right here and we’re all wrong, because I am not a literary work (although I dabble at writing), musical or sound recording work (although I play an instrument), dramatic work (despite my tendencies), pictorial or graphic work (I like to think of myself as three-dimensional versus two), motion picture or audiovisual work (although I like to think I’m easy on the eyes), nor architectural work, pantomime or choreographic work (these last three options were not available under the 1909 Act, see below).
Copyrights arise upon creation (my conception) of the work (me). The work created is known as an original work of authorship. Thus, I am an original work of authorship. However, although my point is proven, I do not rest my case yet.
Second, absent a work made for hire or written transfer, ownership of the copyrights in the original work of authorship (me) vests in the creator or creators (my parents), which creators are referred to under the US federal copyright law as author(s).
I am not a work made for hire, because regardless of the birth labors of my mother, there was (1) neither an employer-employee relationship between my parents and myself at creation (conception), nor (2) did I qualify (at conception) as one of the 9 federal statutory types of original works that can be a work made for hire per a written agreement between the parties (plus there was no written agreement).
Therefore, upon my conception and through gestation and delivery, my parents retained ownership of me. During the time I was in utero, I was an unpublished work (that is, not in public view, as there were no sonograms in those days).
Do my parents still own me? (If so, then where is my allowance? It is decades past due. I’m sure the accrued interest, let alone the principal, is a staggering sum.) Was a written transfer of ownership affected post-conception, such that I own myself? Or did I fall into the public domain?
By doing the math, I have determined that I was conceived in 1961 and born in 1962. Accordingly, I am a pre-January 1, 1978, work of authorship and the 1909 Copyright Act applies to me as a work.
Under the 1909 Act, copyrights of published works (I have been in public view since birth, so I am a published work) are perfected by a registration with the US Copyright Office. At my birth, my parents did not have the benefit of their daughter’s future legal knowledge and advice, nor other sage legal counsel, and in their ignorance, they did not register me.
Also under the 1909 Act, a failure to register a published work deems it dedicated to the public by operation of law. So, I must conclude that I am a work in the public domain. Works in the public domain are owned by no one. Alas, despite my powers of self-possession, I must conclude that I am ownerless.
Thank you for the interesting mental exercise which has disheartened me, but provided me with fodder for my BLog O’Speer & Associates. You can find out if I really post it by subscribing to the blog at www.blspeer.com/blog.aspx (thinly veiled request for validation).
© 2012 BL Speer & Associates