An idea of authorship: Orson Welles, 'The War of the Worlds' copyright, and why we should recognize idea-contributors as joint authors.

• Author: McFarlin, Timothy J.
• Position: Abstract through II. Essential Ideas: The War of the Worlds' Creation in Print and on the Air C. Second Conception: Wells to Welles, p. 701-733

Abstract

Did Orson Welles co-author the infamous War of the Worlds broadcast? The Ninth Circuit Court of Appeals has told us no, primarily because he only contributed the idea behind the broadcast, and ideas alone can't be copyrighted. "An Idea of Authorship" challenges this premise--that ideas, no matter how significant, cannot qualify for joint authorship in collaborative works--and argues that we as a society should, under certain circumstances, recognize idea-contributors like Welles as joint authors. We should do so to further our society's interest in encouraging future creations, as well as out of a sense of equity and fairness to idea-contributors, acknowledging the value of ideas to creative work. Recognizing idea-contributors as joint authors would increase the contractual bargaining power of many of our society's most creative minds and ultimately better foster the free flow of ideas essential to the constitutional goal of promoting the "Progress of Science and useful Arts." (1)

Contents Introduction I. Copyright and Ideas: An Uneasy Relationship A. The Uncopyrightable Idea B. Why the Expression-Only Rule Has Become Part of Joint Authorship Doctrine II. Essential Ideas: The War of the Worlds' Creation in Print and on the Air A. First Conception: The Wells Brothers B. Mercury Rising C. Second Conception: Wells to Welles 1. Orson Welles Testifies About the Broadcast's Creation 2. Howard Koch Testifies About Writing the Script D. Creative Litigation: Welles v. CBS 1. Welles's Claims 2. Trial and Appeal III. Recognizing Idea-Contributors as Joint Authors A. Why We Should Recognize Idea-Contributors 1. An Author is More Than an Expressionist 2. Promoting Collaborative Creativity 3. Ensuring Rightful Credit, Compensation, and Bargaining Power B. How We Should Recognize Idea-Contributors 1. Substantial Creative Contribution 2. Exacting Evidence of Intent: A Preexisting Working Relationship 3. Originality as a Prerequisite? C. The Benefits Outweigh the Fears Conclusion Introduction

"Miss Kael glosses over the following point ... '[Koch] says it was ... Welles's idea that he do the Martian show in the form of radio bulletins.' This is a meaningless sentence for those unfamiliar with the broadcast, and easily missed by those who may vaguely remember it now. Listen to it, though ... and you will see that it is precisely this conception which was the guide for the dialogue, radio effects, the whole organization of the material. It is the heart of the matter. "

--Filmmaker and Orson Welles confidant Peter Bogdanovich--writing together with Welles himself--responding to film critic Pauline Kael's accusation that Welles improperly claimed authorship credit for the War of the Worlds broadcast (2)

"ORSON WELLES CAUSES PANIC"

--Times Square news ticker, hours after the broadcast (3)

Flash! Radiating from a CBS broadcast room in New York City the night before Halloween, 1938, the news that murderous, alien creatures had landed in the small town of Grover's Mill, New Jersey spread across the country like wildfire--the Martians had invaded. (4) Headlines the next day oozed fear: "Radio Listeners in Panic, Taking War Drama as Fact," in the New York Times, "FAKE RADIO 'WAR' STIRS TERROR THROUGH U.S.," from the Daily News, "RADIO PLAY TERRIFIES NATION," in The Boston Globe. (5) While recent research convincingly argues that the papers exaggerated the panic and invented the legend that entire towns ran for the hills, the research also confirms that many people, perhaps thousands, did in fact worry--and sometimes truly believe--that the invasion was real. (6) Why?

By all accounts, listeners believed it because the broadcast was written and performed in the style of actual news bulletins, complete with breaking announcements, field reporting, and official public alerts. (7) Had the broadcast used a purely narrative form like the H.G. Wells novel on which it was based, it's almost inconceivable that anyone who tuned in to the show, much less thousands across America, would have actually worried that Martians were taking over the Earth. (8) And without this reaction, it's equally unlikely that radio's War of the Worlds would have become the cultural phenomenon and legendary mass media event that we remember today.

So who caused this reaction? Who was the broadcast's author? Most of us, thinking back to our school days or simply reaching into our brain's pop culture databanks would likely say "Orson Welles," or we'd at least guess that he played some significant role in its authorship. We'd be wrong, though, at least if we asked the courts. That's because in 1962, in the case of Welles v. CBS, (9) the Ninth Circuit Court of Appeals affirmed a trial court ruling that Orson Welles was "neither author nor a co-author" of the War of the Worlds broadcast. (10)

Despite ruling against Welles, the courts did recognize that it was his idea to adapt the War of the Worlds novel into a series of radio bulletins describing the Martian invasion as it was happening. (11) No one disputed that Welles, as the broadcast's lead producer and director, had asked his co-producer John Houseman to communicate this bulletin idea to one of the writers they worked with, Howard Koch, with the instruction to draft a script in that form. (12) Houseman did so, and Koch wrote a simulated live news broadcast announcing the Martian invasion of Earth described in the novel. (13) Welles edited and approved the script, and then he, along with other actors from his and Houseman's Mercury Theatre group, performed War of the Worlds on the radio that fateful night of October 30, 1938. (14) Though Welles testified that he helped more with the writing of the script (not simply its editing) than either Koch in his deposition or Houseman in his memoirs would admit, nobody challenged these basic facts of Welles's creative involvement. (15)

Why then, despite these facts, did the trial court find, and the Ninth Circuit affirm, that Welles played no part in authoring the War of the Worlds radio play? Under prevailing law, both in 1938 and today, the contribution of ideas and ideas alone--no matter how vital--did not and does not constitute authorship of a copyrightable work. (16) In other words, if you contribute ideas to a collaborative creation but your collaborator is the only one who writes them down (or puts them into some other tangible medium of expression), you cannot qualify as a joint author of that creation. (17) So, because the trial court found that Orson Welles contributed only ideas to the War of the Worlds radio play, he did not share in any part of its authorship. Howard Koch, who wrote the script that incorporated and expressed Welles's idea, was the sole author.

I believe that this rule--collaborators who contribute ideas, and ideas alone, cannot be joint authors of copyrightable works--reflects a fundamentally flawed conception of authorship, one which ignores the reality of the creative process and prevents artists like Welles from obtaining the credit and compensation they deserve. Sometimes, as with The War of the Worlds, an idea can be so vital to a collaborative work-indeed, in the words of Bogdanovich and Welles, (18) it can be the very "heart of the matter"--that the idea's generator deserves to be considered the work's joint author.

In a previous article, I examined how copyright's current joint authorship tests would have blocked a non-dominant collaborator, the pianist Johnnie Johnson, from any chance of establishing joint authorship of a significant number of Chuck Berry's songs, despite compelling evidence that he helped Berry create them. (19) Here, Welles v. CBS shows how the law's present formulation of joint authorship isn't just stacked against non-dominant collaborators (i.e., those who contribute to the creation of a copyrightable work but who aren't making the final creative decisions). (20) By the current tests' bright-line requirement that each collaborator contribute independently copyrightable expression, even dominant collaborators like Orson Welles can be unfairly and improperly blocked from the status and rewards of joint authorship. The contribution of ideas, because they aren't by themselves copyrightable, (21) will not qualify even the most dominant and genius of collaborators for authorship in a jointly created work.

Thus, regardless of whether the courts or Congress adopt a new formulation of joint authorship like my previously proposed "Berry-Johnson" test, (22) the Welles case compellingly illustrates why the independent copyrightability requirement should be discarded from any test to determine whether a copyrighted work was authored jointly. Not only is the current rule unjust to Welles and other idea-contributors, but removing this barrier will also promote the arts by encouraging the free flow of ideas among future creative collaborators.

To further explain why the contribution of ideas should qualify for joint authorship, Part I of this Article explores how and why the courts imported copyright's "expression-only" rule into joint authorship in the first place. Part II then details the creation of The War of The Worlds in print and on the radio--most particularly as it was described in the sworn testimony of Orson Welles and Howard Koch in Welles v. CBS--and demonstrates that, through his idea, Welles contributed substantially to the broadcast's creation. Last, Part III addresses concerns over expanding joint authorship to include ideas, and it ultimately suggests why and how idea-contributors like Orson Welles should...