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"multimedia" work is that it combines several different elements or types of works (e.g., text (literary works), sound (sound recordings), still images (pictorial works), and moving images (audiovisual works)) into a single medium (e.g., a CD-ROM) not multiple media.120 However, in recognition of the prevalent use of the term, this Report refers to this type of work as a "multimedia" work.

Multimedia works are not categorized separately under the Copyright Act; nor are they explicitly included in any

of the eight enumerated categories. While most current multimedia works would be considered compilations, 21 that classification does not resolve the issue of subject matter categorization.122

Despite the fact that the Copyright Act enumerates eight categories of works, works that do not fit into

any

of the categories may, nevertheless, be protected. The list of protectible works in Section 102 is intended to be illustrative rather than inclusive.123 The House Report explains that the categories of works "do not necessarily exhaust the scope of 'original works of authorship' that the

120

A true "multimedia" work would be one in which several material objects, such as a book, a videocassette and an audiocassette, are bundled into one product.

121

See discussion of compilations supra pp. 40-41.

122

While expressly protected under the Copyright Act, the category of "compilations" is not a particularly useful subject matter category. Works in any of the eight enumerated categories of protectible subject matter outlined above may take the form of a compilation, and a protectible compilation must fit into one or more of the subject matter categories. "A compilation or derivative work is copyrightable if it represents an 'original work of authorship' and falls within one or more of the categories listed in section 102." HOUSE REPORT at 57, reprinted in 1976 U.S.C.C.A.N. 5670 (emphasis added).

123

The list "sets out the general area of copyrightable subject matter, but with sufficient flexibility to free the courts from rigid or outmoded concepts of the scope of particular categories." HOUSE REPORT at 53, reprinted in 1976 U.S.C.C.A.N. 5666.

[Copyright Act] is intended to protect. However, absent the addition of a new category, a work that does not fit into one of the enumerated categories is, in a sense, in a copyright no-man's land. 125

Under the current law, the categorization of a work holds a great deal of significance under the Copyright Act. For instance, two of the exclusive rights granted in Section 106 apply only to certain categories of works. 126 In addition, many of the limitations on rights in Sections 108 through 120 are not applicable to all types of works. 127

of works. 127 Therefore,

124

HOUSE REPORT at 53, reprinted in 1976 U.S.C.C.A.N. 5666. Indeed, Congress amended the Copyright Act in 1990 to add "architectural works" as a category of protectible works. See supra note 109. 125

It should be noted that the Copyright Office classifies works into four broad categories for purposes of registration: nondramatic literary works, works of performing arts, works of visual arts, and sound recordings. See 37 C.F.R. $ 202.3(b)(i)-(iv) (1994). The Copyright Office notes that in cases "where a work contains elements of authorship in which copyright is claimed which fall into two or more classes, the application should be submitted in the class most appropriate to the type of authorship that predominates in the work as a whole." See 37 C.F.R. $ 202.3(b)(2) (1994). However, the Copyright Act makes clear that the Copyright Office classification of works for purposes of registration "has no significance with respect to the subject matter of copyright or the exclusive rights provided." See 17 U.S.C. 408(c)(1) (1988); see also HOUSE REPORT at 153, reprinted in 1976 U.S.C.C.A.N. 5769 ("[i]t is important that the statutory provisions setting forth the subject matter of copyright be kept entirely separate from any classification of copyrightable works for practical administrative purposes").

See 17 U.S.C. § 106(4),(5) (1988 & Supp. V 1993). The public performance right is limited to literary, musical, dramatic, and choreographic works, pantomimes, and motion pictures and other audiovisual works. The public display right is limited to literary, musical, dramatic, and choreographic works, pantomimes, and pictorial, graphic, or sculptural works, including the individual images of a motion picture or other audiovisual work. Id. 127

See, e.g., 17 U.S.C. S 108(h) (1988) (limitation not applicable to musical works, pictorial, graphic or sculptural works, or motion pictures or other audiovisual works other than audiovisual works dealing with news); 17 U.S.C. $ 109(b) (Supp. V 1993) (certain limitations not applicable to sound recordings and musical works embodied in sound recordings or to computer programs); 17 U.S.C. $ 110(4) (1988) (limitation applicable only to nondramatic literary or musical works); 17 U.S.C S 110(8) (1988) (limitation applicable only to nondramatic literary works); 17 U.S.C. $ 110(9) (1988) (limitation applicable

126

categorization of multimedia and other new types of works is an important issue.

Generally, multimedia works include two or more of the following preexisting elements: text (literary works), computer programs (literary works), music (musical works and sound recordings), still images (pictorial and graphic works) and moving images (audiovisual works). The definition of "literary works" begins with the phrase "works, other than audiovisual works .... "128 Therefore, a reasonable interpretation may be that text and computer programs that would otherwise be categorized as literary works may be considered

part

of an audiovisual work if included in a work of that type. Such is also the case with sound recordings. A music video is not categorized as both a sound recording and an audiovisual work; it is categorized as an audiovisual

Audiovisual works also include still images least related ones. 130 Therefore, in many instances, a multimedia work may be considered

as a whole audiovisual work. The legislative history makes clear that a

work. 129

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only to dramatic literary works); 17 U.S.C. § 112(a) (1988) (limitation not applicable to motion pictures or other audiovisual works); 17 U.S.C. S 113 (1988 & Supp. V 1993) (limitation applicable only to pictorial, graphic, or sculptural works); 17 U.S.C. S 114 (1988) (limitation applicable only to sound recordings); 17 U.S.C. $ 115 (1988) (limitation applicable only to nondramatic musical works); and 17 U.S.C. S 120 (Supp. V 1993) (limitation applicable only to architectural works).

128

See 17 U.S.C. § 101 (1988) (definition of "literary works") (emphasis added).

129

The definition of "sound recordings" explicitly excludes from the category of sound recordings musical, spoken or other sounds "accompanying a motion picture or other audiovisual work...." See 17 U.S.C. § 101 (1988) (definition of "sound recordings"). The definition of "audiovisual works" also expressly includes any "accompanying sounds." See 17 U.S.C. S 101 (1988) (definition of "audiovisual works").

130

Audiovisual works are "works that consist of a series of related images which are intrinsically intended to be shown by the use of machines or devices such as projectors, viewers, or electronic equipment...." 17 U.S.C. S 101 (1988) (definition of "audiovisual works").

131

work in one category may contain works in other categories.

The somewhat strained analysis needed to find a category for multimedia works and the increasing "crossbreeding" of types of works demonstrate that categorization may no longer be useful or necessary. While the Working Group does not recommend at this time the consolidation or elimination of categories (and harmonization of the differing application of rights and limitations on those rights), it is likely that such consolidation or elimination will be appropriate in the future.

3. COPYRIGHT OWNERSHIP

Copyright ownership in a work initially vests in the author of the work. 132 If the work is a "joint work" (a work with two or more authors), the authors are co-owners of the copyright in the work. 133

Under certain circumstances, the copyright in a work is not granted to the actual preparer of the work. In the case of "works made for hire," the employer of the preparer or the person for whom the work was prepared is considered the "author" for purposes of the Copyright Act.134 There are two types of works made for hire -- those prepared by an employee and those prepared by an independent contractor by special order or commission.

131

Categories are "overlapping in the sense that a work falling within one class may encompass works coming within some or all of the other categories." HOUSE REPORT at 53, reprinted in 1976 U.S.C.C.A.N. 5666.

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133

Id. A "joint work" is "a work prepared by two or more authors with the intention that their contributions be merged into inseparable or interdependent parts of a unitary whole." 17 U.S.C. S 101 (1988) (definition of "joint work").

134

See 17 U.S.C. S 201(b) (1988). This legal conclusion may only be altered by the parties in a written instrument signed by them expressly agreeing otherwise. Id.

The copyright in a work prepared by an employee within the scope of employment vests in the employer, and the employer is the author. 15 The copyright in a work specially ordered or commissioned vests in the person for whom the work was prepared if the work falls into one of nine specified categories and if the parties expressly agree in writing that the work will be considered a work made for

hire 136

Copyright ownership entitles the copyright owner to:

exercise the exclusive rights granted under Section 106;

authorize others to exercise any of those exclusive rights; and

prevent others from exercising any of those exclusive rights.

135

The Copyright Act does not define "employee." In 1989, the Supreme Court held that an employment relationship determination for copyright purposes should be made by reference to the "general common law of agency." See Community for Creative Non-Violence v. Reid, 490 U.S. 730, 740-41 (1989). The central question in an agency law inquiry is whether the hiring party has the "right to control the manner and means by which the product is accomplished." Id. at 751. The factors to be considered include the skill required, the source of the instrumentalities and tools used in creating the work, where the work was created, the duration of the relationship between the parties, whether the hiring party has the right to assign additional projects to the hired party, the method of payment, the extent of the hired party's discretion over when and how long to work, the hired party's role in hiring and paying assistants, whether the hiring party is in business and whether the work is part of the regular business of the hiring party, the provision of employee benefits, and the tax treatment of the hired party. Id. at 751-52. The Court did not specify any

factors that should be weighed more heavily than others, but made clear that an "employee" under the Copyright Act is not limited to a formal, salaried employee.

136

To qualify as a work made for hire under the second prong, the work must be specially ordered or commissioned for use as (1) a contribution to a collective work, (2) part of an audiovisual work, (3) a translation, (4) a supplementary work, (5) a compilation, (6) an instructional text, (7) a test, (8) answer material for a test or (9) an atlas. 17 U.S.C. S 101 (1988) (definition of "work made for hire").

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