Unauthorized Annexing of an Artist's World: an Argument for Creator-assignee Standing to Sue for Copyright Infringement
| Jurisdiction | United States,Federal |
| Citation | Vol. 30 No. 02 |
| Publication year | 2006 |
I. Introduction
Similar to Andre Malraux, lawmakers acknowledge that a creator's(fn2) work is marked with the creator's personality,(fn3) but how far should copyright law go to protect a creator's "fragment of the world"?+ This inquiry raises two questions. First, what rights are protected? Second, whose rights are protected?
The answer to the "what rights" question appears straightforward if one reviews only the Constitution's Copyright Clause and the current copyright statute. The Copyright Clause of the Constitution empowers Congress "to promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries."(fn4) Thus, the clause grants an "exclusive right" to an author's "writings." Additionally, the clause's language underscores two goals for federal copyright law-promoting progress and protecting creators' works.(fn5) Underlying these goals are both economic and non-economic justifications.(fn6)
In the current copyright statute, Congress has further defined the Constitution's "exclusive right." The exclusive right is comprised of five separate rights: (1) the right of reproduction; (2) the right to create derivative works; (3) the right to distribute the work to the public by sale or other transfer of ownership; (4) the right to perform the work publicly; and (5) the right to display the work publicly.(fn7) Each of these rights is transferable and divisible.(fn8)
However, United States' treaty obligations cloud the answer to the "what rights" question. The United States is a signatory to an international copyright treaty, the Berne Convention for Protection of Literary and Artistic Property (Berne Convention).(fn9) Under the Berne Convention, two additional authorial rights are protected: (1) an author's "right to claim authorship"; and (2) an author's right of integrity, that is, "to object to any distortion, mutilation or other modification of, or other derogatory action" toward the work that "would be prejudicial to [the author's] honor or reputation."(fn10) With few exceptions,(fn11) Congress has not enacted any provisions protecting these authorial rights.
The answer to the "whose rights" question is not straightforward. The Constitution grants Congress the power to give "authors" the exclusive right to their works for a limited time,(fn12) and under the statute, initial copyright ownership vests in the "author."(fn13) The copyright statute, however, never defines who an author is.(fn14) A common definition of an author would be the individual who originated or created a work.(fn15) But, under copyright law, "author" is not always synonymous with the human being who created the work. An "author" may be an employer or someone who asks a creator to create a work under the copyright's "work made for hire" provision.(fn16) As an "author," the employer or commissioner of the work "owns all of the rights comprised in the copyright."(fn17)
Thus, the answers to the two initial questions are as follows: (1) under the Constitution and copyright statute, an "author," who may or may not be the individual creator of the work, owns five separate "exclusive rights" that can be freely transferred and divided; and (2) under the Berne Convention, a creator is entitled to protection of his right to claim authorship and right of integrity.
The copyright statute protects authors' exclusive rights by allowing a potential plaintiff to bring an action for infringement: anyone who "violates any of the exclusive rights of the copyright owner ... is an infringer"(fn18) and is subject to an action for infringement.(fn19) Answering the question of which type of plaintiff can bring an action to redress a violation of one of the rights is complicated. Because federal courts have jurisdiction over infringement claims arising under federal copyright law,(fn20) a plaintiff must satisfy the real party in interest(fn21) and standing(fn22) prerequisites in addition to satisfying the statutory requirements.(fn23) To satisfy the real party in interest requirement, a plaintiff must be the person "who possesses the right sought to be enforced."(fn24) An assignee of an accrued cause of action qualifies as the real party in interest.(fn25)
The standing inquiry involves both a constitutional and statutory test. To satisfy the constitutional requirements, a plaintiff must establish that she suffered an injury that was caused by the defendant's conduct and that is likely to be redressed by a favorable decision.(fn26) If the constitutional test is satisfied, a plaintiff must still satisfy the statutory standing requirement by showing that he or she is the "legal or beneficial owner" of any exclusive right or part of an exclusive right.(fn27)
A plaintiff qualifies as a legal owner if she owns some portion of one of the exclusive rights. Because of the divisibility of the exclusive rights, the plaintiff in an infringement case is not required to own the entire copyright interest.(fn28) Additionally, a "legal owner" can be an assignee of a copyright interest who also received an assignment of an accrued cause of action for infringement.(fn29)
Generally, courts have determined beneficial ownership issues based on whether a plaintiff has an economic interest, such as a royalty arrangement, in the copyright.(fn30) As with the term "author," the statute does not define the term "beneficial owner."(fn31) However, even when a royalty arrangement exists, if a creator created the work as part of a work-made-for-hire relationship, the creator may not qualify as a beneficial owner.(fn32) What if, after an infringement has occurred, a creator receives an assignment of an accrued cause of action without an assignment of any other interest in the copyright?(fn33)
This Comment surveys the contemporary status of copyright law regarding a creator-assignee's standing to sue for infringement and the bases for allowing a creator-assignee to bring an infringement action.(fn34) Part II begins the discussion with a review of the general principles of copyright law, including its constitutional and statutory frameworks, its underlying policies, and the moral rights doctrine. Part III continues with an overview of the general constitutional standing principles and real party in interest prerequisites. It then outlines the statutory and judicial limits on standing to sue under copyright law. Part IV discusses the issue of assignee standing in copyright law and then reviews the issue of creator-assignee's standing to sue. This discussion focuses on the recent case of
Finally, Part V sets forth three arguments for granting a creator-assignee standing to sue for copyright infringement. First, granting a creator-assignee standing to sue effectuates Congress's intent that the rights granted under the Copyright Act of 1976(fn36) be divisible and alienable. Second, a creator-assignee fulfills the standing and real party in interest prerequisites. Finally, allowing a creator-assignee standing to sue advances the constitutional goals of promoting progress and protecting a creator's rights in her work. The thrust of this argument relies on both the economic and non-economic justifications of copyright law, in particular the right of attribution.
II. General Principles of Copyright Law
To appreciate why a creator-assignee should have standing to sue, one must first understand some general principles of copyright law. This Part provides a summary of these general principles beginning with copyright's constitutional and statutory frameworks and its underlying justifications. It concludes by discussing the limited moral rights protection currently available under U.S. copyright law.
Both the state copyright laws enacted prior to the Constitution and the Constitution's Copyright Clause recognize the close relationship between a creator and his work. Prior to adoption of the Constitution, creators relied on state law for copyright protection.(fn37) While the Continental Congress had no power to protect literary property, American creators found a valuable ally in the Continental Congress.(fn38) The Continental Congress issued a resolution(fn39) encouraging states to provide protection because "nothing is more properly a man's own than the fruit of his study."(fn40) While the provisions of each state's statute varied, all of the statutes had dual purposes-protecting creator's rights and promoting the public good by providing an incentive to creators.(fn41)
By the time of the Constitutional Convention, the inadequacies of the state systems-lack of uniformity, lack of reciprocity, and insufficient geographic protection-were apparent.(fn42) The framers, recognizing these...
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