On 15 Nov 2006 at 21:44, John Howell wrote: > At 8:29 PM -0500 11/14/06, David W. Fenton wrote: > >On 14 Nov 2006 at 10:13, Mark D Lew wrote: > > > >> By > >> default, under American law, the copyright of any work for hire > >> falls to the one who is hiring. If a client hires you to write > >> something, the resulting product belongs to him unless both > >> parties agree otherwise. > > > >Er, no, I think that's wrong. Work for hire is only work for hire if > >the contract explicitly specifies that it is. Otherwise, the creator > >owns the copyright. The exception is if you're an employee of a > >company and create the content as part of your daily work. Then it's > >work for hire without there being a contract, because it was created > >on time paid by the employer. > > David, I think the slip in logic here is that in a computer program > (or literature or poetry), the programmer (or writer) is the creator.
Creator of what? If a client spends a great deal of time designing a workflow and user interface, and all the programmer does is implement it, that doesn't really make the programmer the creator. But the programmer still retains copyright, unless the contract explicitly specified that it was "work for hire." > In the case of music the "original work" and the copyright that > accompanies it belong similarly to the creator, but someone who > arranges that work is making a derivative work, no matter how creative > the arrangement may actually be. I don't think it's as big of a difference as you seem to believe. > As an arranger I am much more familiar with the copyright > implications of arranging than of engraving, but it seems as if you > are arguing that a derivative work (i.e. a Finale file of a > copyrighted work) is a new creation, while Mark is arguing that it is > not. I'm making no such argument. All I'm saying is that it's not "work for hire" unless explicitly identified as such in the contract governing the work (if the work is done by an employee, "work for hire" is assumed, because the relevant "contract" is the agreement to work for the employer full-time). > Back in the good ol' days of hand copying and hand copyists, > there was never any question of the copyist claiming copyright in his > work, or claiming to own his "work product." It seems to me that a > Finale engraver does nothing more and nothing less than what a good > hand copyist used to do, but does it using modern technology. But there was nothing produced except the final product in that case. That's why I think the photographer analogy, imperfect as it may be, is relevant. > The problem is that analogies are never 100% identical, and arguing > from analogy is the kind of thing that could get thrown out of court. All I know is that you can't assume "work for hire" in any context. I don't know why music copying would be treated legally differently from all the other examples in that regard. > >The important thing is that the paying party specify what they think > >they are buying and that the creating party then price the product > >accordingly. > > Well of course! Otherwise, caveat emptor!! > > >But the default is that the creator owns the copyright, not the other > >way around. > > Yes, and neither an arranger nor an engraver is the creator of a > previously existing copyrighted work. Problem is, the only way to > settle the question is through court cases, in which someone is always > bound to be hurt. It's not as simple as you make it out to be, seems to me. -- David W. Fenton http://dfenton.com David Fenton Associates http://dfenton.com/DFA/ _______________________________________________ Finale mailing list [email protected] http://lists.shsu.edu/mailman/listinfo/finale
