The Interstices of Copyright Law and Contract Law II: Finding the Terms of an Implied Nonexclusive License in the Absence of Joint Authorship

In a 1999 article, I explored the problem that arises when one party -- whom I called the hiring party -- commissions a work from another party -- whom I called the hired party. The hired party is generally found to be the sole author of the work. The question then becomes: If the hired party is the copyright owner, what rights does the hiring party have to use the work? The article argued that in the absence of a written agreement addressing the issue, under contract law principles, the hired party as copyright owner has granted the hiring party an implied nonexclusive license to use the work. The scope of that license can be deduced from the facts and circumstances using principles of contract law. The article suggested that courts apply a use test, under which the hiring party will be granted an implied nonexclusive license when the facts and circumstances indicate that the hiring party intended to use the work. The scope of that license is limited to the use reasonably contemplated. This article explores a similar problem that arises when one party -- whom we will call the secondary party -- contributes to the work of another party -- whom we will call the primary party -- and claims that a joint work has been created. In the problematic cases, the contribution of the secondary party is likely made temporally after the primary party has largely completed the work, and spatially usually consists of a small part of the completed work. This article argues that principles of contract law should be used to determine whether the work is a joint work. If the work is determined not to be a joint work, and the primary party has incorporated into the work material in which the secondary party is entitled to copyright protection, this article argues that the situation is analogous to the relationship between the hiring party and the hired party under a failed work for hire agreement. The secondary party has granted the primary party an implied nonexclusive license to use the work and principles of contract law will again be used to determine the scope of that license.