◊ VRP Law-The Intellectual Property and Employment Law Blog.
Provided by Vihar R. Patel and Sponsored by Enterprise Law Group, LLPArchive for August, 2009
Collaborators, Joint Authors and Copyright Infringement!
Generally, joint authors own an undivided interest despite any differences in the authors contributions. Erickson v. Trinity Theatre Inc., 13 F.3d 1061, 1071 (7th Cir. 1994). A movie, song, book, computer program, picture will qualify as a joint work if two or more authors collaborated and/or contributed interdependent parts with the intention to a create a unitary whole. 17 USC 101.
Traditionally, this requires the following: 1) the intent to create a joint work; and 2) contribution of independently copyrightable work. Erickson, at 1068. The intent requirement only requires that the parties wanted to work together to create a single product, nothing more. Janky v. Lake County Convention and Visitors Bureau, 07-2350 (7th Cir. 2008) (see attached). In performing this analysis the court must look to the parties intent at the time that the work was created. Id.
Moreover, crediting another person as a co-author is strong evidence of the intent to create a joint work. Id. The second element requires that the contribution is something that is more than general ideas or suggestions, but concrete expressions meriting copyright protection. Id. The Seventh Circuit’s refinement and restatement of the joint author analysis heightens the need for collaborators to clearly define their roles and rights to intellectual property ownership.
Whether you are working with an other individual, consultant, company, independent contractor or a employee, if you fail to clearly define the roles and rights between the collaborators, then you take the risk of allowing another to own your intellectual property.
See: Janky v. Lake County
Employment Related Torts-Assault, Battery, IIED, and False Imprisonment!
Often times, employers and employees do not realize that there are common law torts associated with many forms of sexual harassment. If sexual harassment involved some form of touching or locking up of an employee in an employer facility, then the employer may be liable for common law torts, as well as, sexual harassment.
It used to be that the Illinois Human Rights Act (“IHRA”) pre-empted many of these common law torts; however, due to recent changes in the law these common law claims are now permitted. However, the common law torts must not be inextricably linked to the sexual harassment claim. A common law tort claim that is inextricably linked is still pre-empted by the IHRA. Johnson v. Chicago Board of Ed., 2002 WL 1769976 *5-7, (N.D. Ill.) and Quantock v. Shared Marketing Services Inc., 312 F.3d 899, 904-06 (7th Cir. 2002).
In addition, these common law tort claims are still subject to traditional common law defenses, such as the following: laches, statutes of limitations, consent, etc. In fact, voluntarily entering a room with the harasser can be the basis of a strong consent defense for an employer. Hanna v. Marshall Field & Co., 279 Ill. App.3d 784 (1st Dist. 1996) (affirming a trial courts dismissal of a false imprisonment claim based on the consent defense pursuant to the employer’s summary judgment motion).
Of course, this can vary based on the gravity of the sexual harassment from touching hair or genitalia, use of threats, weapons and/or physical violence. Understanding these employment related torts requires a careful review of current court opinions on these matters. If you have any concerns or questions relating to these matters, then please feel free to contact us.
Attorneys’ fee awards, Prevailing Parties and Reasonable Fee Awards!
Attorneys’ fees are often a huge point of contention in a lawsuit, especially, in consumer and employment law areas. Often fee shifting provisions are utilized to negotiate concessions from opposing parties. However, understanding how fee petitions are awarded by courts is crucial to litigating these disputes, advising business owners, individuals, employers, employees, collection agencies and consumers.
A court will look at the following factors: 1) the nature of the law and the expertise required; 2) the local rates of attorneys specializing in that area of law; 3) the use of multiple attorneys; 3) the complexity of the task performed by the billing attorneys; 4) the amount of recovery obtained for the client; 5) the efficient use of paralegals or administrative staff; 6) the number of conferences and attorney meetings; and 7) the length of the litigation.
In a recent opinion, the 7th Circuit, affirmed a district courts award of $6500 in fees, based on the following findings: 1) four attorneys were used, when one attorney with a billing $260 could have performed the work; 2) duplicative tasks were performed by attorneys with a billing rate of $425 and $375; 3) the lawsuit was resolved in a matter of months; 4) $6500 seemed roughly proportional to the amount recovered for the Plaintiffs under the Fair Debt Collections Practices Act (FDCPA); and 5) the courts determination that the proffered evidence did not justify the billing rates claims by Plaintiffs’ attorneys.
See: Fee_7th_Schlacher_0809. If you have any concerns or questions regarding the attorneys’ fee matters, then please feel free to contact us.
