Joint Work Determination Does Not Exclude a Derivative Work Determination

Dr. Ross W. Greene developed the Collaborative Problem Solving Approach, a method for treating children with explosive behaviors.  Greene wrote The Explosive Child, a book describing his methods.  Greene and Dr. J. Stuart Ablon co-authored the book Treating Explosive Kids

A disagreement developed between Greene and Ablon, after which Greene sued Ablon for copyright infringement.  Greene alleged that slides in Ablon’s Power Point presentation infringed Green’s copyrights in both The Explosive Child and Treating Explosive Kids.  Greene also called for an accounting for Ablon’s use of Treating Explosive Kids.  Before the case went to a jury trial, the district court ruled that Treating Explosive Kids could not be both a joint work and a derivative work as a matter of law.  The district court ruled that Treating Explosive Kids was a joint work and that because Ablon co-owned that book, he could not infringe it as a matter of law.  The jury awarded Greene $19,000 against Ablon on Greene’s copyright claims.  Both Greene and Ablon appealed to the First Circuit Court of Appeals.  

Treating Explosive Kids was a Joint Work

A joint work is one in which two or more authors intend at the time of writing for their contributions to be merged into an integrated unit.  The authors’ respective contributions do not have to be quantitatively or qualitatively equal, but each author must make a more than de minimis contribution.

The authors of a joint work co-own the copyright in the work. 

Each joint author has the right to use or to license the work as he or she wishes, subject only to the obligation to account to the other joint author for any profits that are made. Even if it is clear that one co-author has contributed more to the work than another co-author, they are nevertheless equal owners of the copyright in the absence of an agreement to the contrary.

(Opinion pdf page 30).

Greene argued that Ablon’s contribution to the finished book was no more than 15 pages out of a 226 page book and that there was a genuine issue of material fact as to whether Ablon was a co-author. 

Greene’s argument fails because he confuses the quality and quantity of Ablon’s contributions with the relationship the authors intended those contributions would have to the rest of the book. We agree with the district court that ‘there is no evidence that either Greene or Ablon believed that Treating Explosive Kids was anything other than a unitary book, and there is abundant evidence that Ablon’s contributions to the book would be [i.e., proved to be and, more importantly, were intended to be] interdependent with Greene’s contributions.’ Although Ablon’s vignettes and Greene’s surrounding passages may have some meaning standing alone, the structure of the book — vignettes nested in related text –demonstrates that these contributions were undoubtedly intended to achieve their primary significance because of their combined effect. Furthermore, the prospectus, the publishing contract, the copyright notice, and the book itself all describe Greene and Ablon, without distinction, as co-authors of a single work. Based on these facts, the only reasonable conclusion is that Ablon’s contributions were always intended to be interdependent with Greene’s. Therefore, the district court correctly determined at summary judgment that Treating Explosive Kids is a joint work, meaning that Greene and Ablon jointly own the copyright in that work.

(Opinion pdf pages 31 – 32).

Treating Explosive Kids was Both a Joint Work and a Derivative Work

The district court ruled as a matter of law that Treating Explosive Kids could not be both a joint work and a derivative work.  Under 17 U.S.C. §101, a derivative work is a work based upon one or more preexisting works. 

Importantly, the copyright in a derivative work extends only to the material contributed by the author of such work, as distinguished from the preexisting material employed in the work. With respect to that preexisting work, any elements that the author of the derivative work borrowed from the underlying work remain protected by the copyrights in the underlying work.

(Opinion pdf pages 33 – 34).

Greene argued that authors who create a derivative work jointly each own only their respective individual contributions.  Under Greene’s argument, Ablon infringed for using Green’s portions of Treating Explosive Kids without Green’s permission.

However, nothing about the limited scope of a derivative work copyright upsets the ownership regime that normally arises when more than one author contributes to a work. When the authors of a derivative work are joint authors, they share equally in the copyright to the derivative work, regardless of who penned the new material. Thus, Greene has no greater claim than Ablon to any of the original expression in Treating Explosive Kids, and he cannot claim copyright infringement on the basis of Ablon’s use of that original expression in his PowerPoint slides.

(Opinion pdf page 34).

The First Circuit described why Treating Explosive Kids is both a joint work and a derivative work.

We do have the fact here that an author of the joint work, Treating Explosive Kids, is also the author of the relevant preexisting work, The Explosive Child. However, that coincidence does not affect the contours of the Treating Explosive Kids copyright, nor does it upset the joint ownership arrangement described above. Treating Explosive Kids may be both joint and derivative, with Greene alone owning the copyright in the underlying work — The Explosive Child — and co-owning the copyright in the derivative work with Ablon.

Hence, Greene might have a viable infringement claim against Ablon if Ablon created a derivative of Treating Explosive Kids, such as the slides, that used the non-original material in Treating Explosive Kids — i.e., material derived from The Explosive Child and covered by Greene’s copyright in that work.

(Opinion pdf pages 34 – 35.)

The First Circuit ruled that the district court erred in ruling that a joint work cannot also be a derivative work, but that Greene did not establish that the district court’s error harmed his case.

This case is Greene v. General Hospital Corporation, Nos. 13-2237, 13-2294, 13-2369, First Circuit Court of Appeals.

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