joegratz.net

I try to read all of Judge Posner’s copyright decisions, both because there’s a nonzero chance I’ll be practicing copyright law in the Seventh Circuit and because they’re really good. The latest, Gaiman v. McFarlane, is cool for a number of reasons. First, it’s a lengthy appellate decision about the comic book Spawn, which is just cool. Second, it’s a meaty copyright case that began in my home state of Wisconsin, which is all too rare (especially for a law student interested in copyright law trying to get a job with Milwaukee and Madison firms).

And third, it resolved an issue that had puzzled me last semester in my Copyright class, about which I hadn’t been able to find any clear guidance. (Even the Nimmers were just speculating.) The baseline rule is that someone is a co-author of a work only if their contribution is independently copyrightable. So, I wondered, what if everybody’s individual contribution was not copyrightable, but the whole was? Say I contribute an uncopyrightable stock character or two (Romeo and Juliet-style characters, for instance) and you contribute an uncopyrightable stock plot (let’s say, Faust). The whole is definitely copyrightable — in this case, something like “The two young lovers whose parents hate each other sell their souls to the Devil”. But under a mechanical reading of the rule, neither of us is a co-author, since we didn’t contribute anything independently copyrightable.

Posner resolves the issue with a pretty reasonable rule, which seems to be “but-for” causation. Even if the contribution is not itself copyrightable, the contributor is a co-author if the joint work would lose its copyrightability absent the contribution in question. This makes the present case come out the right way (Count Cogliostro ends up being jointly owned by Gaiman and McFarlaine), and makes the important co-authorship precedents come out the right way too. Aalmuhammed’s contributions to Malcolm X, if removed, would not change the film’s copyrightability, so he still loses Aalmuhammed v. Lee. And Trinity Theatre’s contributions to the plays in question in Erickson v. Trinity Theatre would not change their copyrightability, so Erickson still wins.

Smart guy, that Posner.