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17.6 Copyright Interests—Authorship (17 U.S.C. § 201(a))

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17.6 COPYRIGHT INTERESTS—AUTHORSHIP (17 U.S.C. § 201(a))

The creator of an original work is called the author of that work. An author originates or "masterminds" the original work, controlling the whole work’s creation and causing it to come into being.

Others may help or may make valuable or creative contributions to a work. However, such [a contributor cannot be the author of the work unless that contributor] [contributors cannot be the authors of the work unless they] caused the work to come into being. One must translate an idea into a fixed, tangible expression in order to be the author of the work. Merely giving an idea to another does not make the giver an author of a work embodying that idea.

Comment

"The question of authorship of a copyrighted work is a question of fact for the jury." See Del Madera Properties v. Rhodes and Gardner, Inc., 820 F.2d 973, 980 (9th Cir.1987).

As to other instructions on particular types of authorship interests, see Instructions 17.7 (Copyright Interests—Joint Authors), 17.8 (Copyright Interests—Authors of Collective Works) and 17.9 (Copyright Interests—Work Made for Hire). As to the requirement of an "original" work, see Instruction 17.12 (Copyright Infringement—Originality).

Copyright in a work "vests initially in the author or authors" of a work. 17 U.S.C. § 201(a). Integral to the concept of authorship is the translation of an idea into a fixed tangible medium of expression. See S.O.S., Inc. v. Payday, Inc., 886 F.2d 1081, 1087 (9th Cir.1989) (citing 17 U.S.C. § 102(a)). A work is "fixed" in a tangible medium when its "authorized" embodiment occurs in a concrete form that is "sufficiently permanent or stable" to permit it being perceived, reproduced, or otherwise communicated. MAI Systems Corp. v. Peak Computer, Inc., 991 F.2d 511, 518 (9th Cir.1993) (loading software into RAM to diagnose problem is sufficiently permanent or stable to be "fixed"). Authorship is a designation for the "originator" of the work, which "causes something to come into being." See Aalmuhammed v. Lee, 202 F.3d 1227, 1232 (9th Cir.2000). In Aalmuhammed the court noted that the Supreme Court had defined "author" as the person "to whom the work owes its origin and who superintended the whole work, the ‘master mind.’" (citing Burrow-Giles Lithographic Co. v. Savony, 111 U.S. 53, 61 (1884). The Burrow-Giles definition "is still good law." See Aalmuhammed, 202 F.3d at 1233.