Small But Significant Suggestions For Changes To Song Meet The "Independently Copyrightable" Test For A Joint Work
JANKY v. LAKE COUNTY CONVENTION AND VISITORS BUREAU (August 3, 2009)
Cheryl Janky and Henry Farag were members of the musical group Stormy Weather. They learned that the Lake County Convention and Visitors Bureau (Bureau) was looking for a song to use in marketing the county’s resources. Janky wrote the music and lyrics for a song and obtained a copyright for it. Her band-mate Farag made several specific recommendations regarding the song’s lyrics. Janky adopted the recommendations and filed for a new copyright listing Farag as the co-author of the song. The Bureau liked the song and began using it in its promotions. Farag issued a non-exclusive license to the Bureau. Some time later, Janky filed yet another copyright registration to correct what she termed a mistake in listing Farag as a co-author. Janky notified the Bureau that she was the exclusive owner of the song. The Bureau, however, did not stop using the song. Janky filed suit. The court entered partial summary judgment in her favor and a jury awarded her $100,000. The Bureau appeals.
In their opinion, Judges Bauer, Ripple (dissenting) and Evans reversed and remanded. The principal issue before the Court was whether Janky held the copyright by herself or whether she shared it with Farag. The legal standard is that individuals are co-authors when they intend to create a joint work and both contribute independently copyrightable material. The majority elaborated on the intent prong by stating that it does not focus on the party's intent to recognize each other as co-authors but on their intent to create a single product together. The majority concluded that the evidence supported a finding that Farag and Janky intended to create a joint work. They relied significantly on Janky's original copyright registration. The majority also found the independently copyrightable prong met in this case. They noted that the changes, although only 10% of the final lyrics, were significant not only to the sound but to the commercial viability of the song. The Court remanded for partial summary judgment to be entered for the Bureau.
Judge Ripple, dissenting, agreed with the majority's statement of the standard and, in fact, agreed with the majority that the district court improperly granted summary judgment to Janky. He disagreed, however, with the majority’s conclusion to enter partial summary judgment in favor of the Bureau. Particularly with respect to the evidence of intent, Judge Ripple concluded that the record did not support entry of judgment for either party.
