Monday, September 21, 2009

Click Lit

This weekend I was listening to "Weekend Edition Saturday" on National Public Radio (NPR). Scott Simon was interviewing Slate Magazine's Dahlia Lithwick (click here for the full transcript). Ms. Lithwick, a lawyer by trade, is taking time off of her day job covering the U.S. Supreme Court at Slate to co-author a fiction novel in the "mommy lit" genre.

Besides the fact that I have long admired Ms. Lithwick's writing and reporting, there is nothing particularly noteworthy about an attorney writing a fiction novel, even an attorney of Ms. Lithwick's considerable writing prowess. What makes this work of authorship newsworthy is that Ms. Lithwick's collaborators--her numerous "friends" on the social networking site Facebook. According to her interview, she sends out Facebook posts asking for help and her Facebook friends to chime in and collaborate on the story. Their input ranges from naming central characters to plot development. She also posts each chapter for review and comment.

This is such an interesting new way to write a novel. It is like having a focus group help you write every chapter, every plot twist, every detail. As intrigued as I was by this new model of writing, I was drawn in more by the potential conundrum of who might own the copyright to the work.

According to the U.S. Copyright Act, 17 U.S.C.A. Sec. 101, 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.” When analyzing joint authorship, we typically apply the two-pronged joint authorship test where we look to (1) contribution and (2) intent.

Under the contribution prong of the joint authorship test each author claiming to be a co-author must have contributed sufficient independent original expression that could stand on its own as copyrightable subject matter. Therefore, those who helped name the protagonist's husband would not be considered a joint author.

The next prong of the joint authorship test is mutual intent: a joint author must intend that his or her contribution be a part of a joint work (i.e., they must be a willing collaborator with other joint authors). Because of the collaborative nature of asking for input, posting chapters for review and input, and editing based on these contributions it would seem that the application of this prong of the test favors joint authorship for those Facebook "friends" who are contributing some significant content that on its own would garner copyright protection.

Lastly, because the Facebook terms of use require each user to issue a license to all intellectual property posted, can Facebook publish this work?

This is a very interesting experiment indeed.


  1. Hello Kenneth, I enjoy your blog.

    I am currently taking a Copyright Law class, and we recently discussed joint works. With regard to the "intent" prong in the above situation, I wonder what you think of Ms. Lithwick's power as the dominant author to avoid a joint work by claiming lack of her own intent to create a joint work.

    The court in Childress v. Taylor (2d Cir. 1991) held that statutory "intent" covered not only the general intent to create a unified work, but also specific intent for the author and the collaborators "to regard themselves as co-authors."

    In class we discussed a hypothetical "narcissistic author" who openly collaborates with others, but vehemently claims himself as sole author/owner for the purposes of copyright.

    I don't mean to suggest that Ms. Lithwick falls into that category, but I think this is an interesting look at what might be an unsettled area of the law.

  2. Pretty good post. I just stumbled upon your blog and wanted to say that I have really enjoyed reading your blog posts.


  3. Very interesting :) certainly taught me something

  4. Nice article, thanks for the information.