Abstract

http://ssrn.com/abstract=1269343
 
 

Footnotes (357)



 


 



Who Owns Bratz? The Integration of Copyright and Employment Law


Michael Birnhack


Tel Aviv University - Buchmann Faculty of Law

September 17, 2008

Fordham Intellectual Property, Media & Entertainment Law Journal, Vol. 20, p. 95, 2009

Abstract:     
Copyright law allocates the initial ownership of works made by employees within the scope of employment, to the employer. The work-made-for-hire doctrine is based on agency law, which in turn is based on tort law. This article revisits the doctrine and proposes an obvious - yet novel - basis, which integrates copyright law and employment law.

After drawing a spectrum of possible allocations of initial ownership, the article examines copyright law through an economic prism and employment law through a fairness prism. The article argues that an allocation which is both efficient and fair is to award initial ownership to the party who bears the risk associated with making the work. Building on a Coasean analysis, the article suggests that the law should avoid allocations that the market is likely to correct instantly in a costless manner.

The analysis explains why penalty default rules are not suitable for the employment context, and instead, it offers to address information deficiencies with interpretive rules, by relying on the typical cases and with greater emphasis on job descriptions. The typical cases are based on the kind of work, employer and employee.

The discussion moderately supports current doctrine, with some modifications and illustrates yet another situation in which copyright law should not be developed in isolation from other fields of law.

Number of Pages in PDF File: 69

Keywords: Copyright law, ownership, workplace, work made for hire, penalty default rule, Tasini

JEL Classification: C70, D82, J24, J53

Accepted Paper Series





Download This Paper

Date posted: September 18, 2008 ; Last revised: February 7, 2011

Suggested Citation

Birnhack, Michael, Who Owns Bratz? The Integration of Copyright and Employment Law (September 17, 2008). Fordham Intellectual Property, Media & Entertainment Law Journal, Vol. 20, p. 95, 2009. Available at SSRN: http://ssrn.com/abstract=1269343

Contact Information

Michael D. Birnhack (Contact Author)
Tel Aviv University - Buchmann Faculty of Law ( email )
Ramat Aviv
Tel Aviv 69978, IL
Israel
+972-3-640-6623 (Phone)
Feedback to SSRN


Paper statistics
Abstract Views: 1,335
Downloads: 118
Download Rank: 144,423
Footnotes:  357
Paper comments
No comments have been made on this paper

© 2014 Social Science Electronic Publishing, Inc. All Rights Reserved.  FAQ   Terms of Use   Privacy Policy   Copyright   Contact Us
This page was processed by apollo2 in 0.313 seconds