Comments

Michael D. Birnhack. 2008. "Working Authors" ExpressO Also available at: http://works.bepress.com/michael_birnhack/13

Abstract

Current copyright law allocates the initial ownership of works made by employees within the scope of their employment, to their employer. The work-made-for-hire doctrine is based on agency law, which in turn is based on tort law. This article revisits the doctrine and proposes an obvious—yet novel—basis, which integrates copyright and employment law. After drawing a spectrum of possible allocations of initial ownership, the article examines copyright law under an economic conception and employment law under a fairness conception. The discussion moderately supports current doctrine, with some modifications.

The article argues that an efficient and fair allocation is to award initial ownership to the party who bears the risk associated with making the work. Typical cases, based on the kind of work, employer and employee are proposed. Building on a Coasean analysis, I suggest that the law should avoid allocations that the market is likely to correct instantly in a costless manner. The analysis explains why penalty default rules are not suitable for the employment context, but instead, it offers to address information deficiencies with interpretive rules, by relying on the typical cases and with greater emphasis on job descriptions. The discussion illustrates yet another situation in which copyright law should not be developed in isolation from other fields of law. Within copyright law, the challenge is to preserve a multiplicity of forms of cultural production.

Disciplines

Intellectual Property | Labor and Employment Law

Date of this Version

October 2008