GUIDELINES AND WORKSHEET FOR DETERMINING

AUTHORSHIP OF COPYRIGHTABLE WORKS

INVOLVED IN TECHNOLOGY TRANSFER

What is copyright?

Copyright is a form of intellectual property protection grounded in the U.S. Constitution and granted by law for original works of authorship fixed in a tangible medium of expression. Copyright covers both published and unpublished works.

What does copyright protect?

Copyright protects original works of authorship including literary, dramatic, musical, and artistic works, such as poetry, novels, movies, songs, computer software, and architecture. Copyright does not protect facts, ideas, systems, or methods of operation; although it may protect the way these things are expressed.

Who owns the copyright in a work?

Section 100.030.A.2. of the Collected Rules provides that the University owns the copyright in these categories of works:

  • Works that are commissioned for University use by the University
  • Works that are created by employees if the production of the materials is a specific responsibility of the position for which the employee is hired
  • Sponsored works, or works resulting from grants (but not if the production of the copyrighted work is ancillary to the purpose of the grant)
  • Works created with the use of substantial University resources

What is an authors’ agreement at the University?

An authors’ agreement is a written agreement between the joint authors of a copyrighted work and the University that identifies the authors and sets forth how net income (after sales and distribution costs) for external use or licensing of the copyrighted work will be distributed among the authors and others at the University.

Who are the authors of a Work?

In general, the authors of a copyrighted work are those individuals who create the work with the intention that their contributions be merged into inseparable or interdependent parts of a unitary whole. The parts of a work are interdependent when they have some meaning standing alone but achieve their primary significance because of their combined effect. Joint authors need not work together or concurrently. In addition, the respective contributions need not be equal either quantitatively or qualitatively. However, each contribution must be more than de minimis. In short, to qualify as a joint author, a person must show that she/she and the other author (1) intended to create a joint work; and (2) each contributed independently copyrightable material.

How does a person’s intent matter in determining whether the person is an “author”?

The intent of each putative joint author is an important element of the “authorship” analysis. The requisite intent to create a joint work exists when the putative joint authors intend to regard themselves as joint authors; it is not enough that they intend to merge their contributions into one unitary work. For example, a writer frequently works with an editor who makes numerous useful revisions to the first draft, some of which will consist of additions of copyrightable expression. Both intend their contributions to be merged into inseparable parts of a unitary whole, yet very few editors and even fewer writers would expect the editor to be accorded the status of joint author, enjoying an undivided half interest in the copyright in the published work. Similarly, research assistants may on occasion contribute or author some protectable expression or merely a sufficiently original selection of factual material as would be entitled to a copyright, yet not be entitled to be regarded as a joint author of the work in which the contributed material appears. What distinguishes the writer-editor relationship and the writer-researcher relationship from the true joint author relationship is the lack of intent of both participants in the venture to regard themselves as joint authors.

Who is the author of a work that is Software?

As noted above, copyright covers the expression in a software program. Thus, copyright does not cover the underlying ideas, how the program operates, or the functions the program performs.

In Missouri, the courts have found that copyright protection extends to both the “literal” and “non-literal” elements of a software program. Literal elements include source code and object code. Non-literal elements include the software's structure, sequence, organization, and the user interface. Because the contribution must have been translated into a tangible medium and then merged into inseparable or interdependent parts of a unitary whole, a person may establish co-authorship of the non-literal elements of a computer program by showing (1) his/her non-literal contributions (e.g., the graphics use in the software) (2) were translated into a tangible medium (e.g., a series of drawings showing the graphics) and (3) then merged into a unitary whole (i.e., the final program).

Authorship Worksheet:

You were identified as a person involved in the creation of the work identified as ______having Reference No. ______.

With the foregoing guidance in mind, please provide the following information in order to help the campus technology transfer office and the Office of the General Counsel determine your authorship status. Please add more pages as necessary.

Full Name:
Email:
Employer/Affiliation:
Academic or Non-Academic?
(see CR&R 310.020.A)
Title/Position:
Department:
Employee ID:
Student (Y/N)?
Visiting Scientist (Y/N)?
Please in describe in detail the nature of your contribution:
Did you intend to be a joint author of the work? / YES / NO / I don’t know
If no, please explain why you do not think you are a joint author.
If yes, please list any other persons you believe may be joint authors.

Note: This document is intended to assist the University and its lawyers in making an authorship determination for works that may be licensed to third parties though the campus technology transfer office. The foregoing is not intended to be an exhaustive recitation of legal standards or the University’s rules and regulations governing copyright. See generally Two Palms Software, Inc. v. Worldwide Freight Management, LLC, 2012 WL 2419927 (E.D. Mo. 2012); Words & Data, Inc. v. GTE Communications Servs., Inc., 765 F. Supp. 570 (W.D. Mo. 1991); Johnson v. Berry, 171 F. Supp.2d 985 (E.D. Mo. 2001); and Childress v. Taylor, 945 F.2d 500 (2d Cir. 1991).

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Last updated August 2014 by the Office of the General Counsel