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First Circuit Rules Single Copyrighted Work Can be Both Joint and Derivative


The First Circuit ruled that, under US copyright law, a joint work of authorship can also be a derivative work.


According to the court, plaintiff Dr. Ross W. Greene developed a method of treating children with explosive behaviors called the Collaborative Problem Solving (“CPS”) Approach.

He applied his method at the Massachusetts General Hospital (“MGH”), wrote a book about the method called The Explosive Child, and also co-authored another book with Dr. J. Stuart Ablon called Treating Explosive Kids.

Greene later contended that Ablon contributed only about 15 pages of material, but the authors divided the royalties evenly.

The hospital’s intellectual property policy gave it ownership of any trademarks developed by employees if the marks pertained to significant hospital activities.

Falling Out

Greene was fired by the hospital and had a falling out with his co-author. He filed suit, alleging that the hospital had infringed his CPS-related trademarks and that Ablon had infringed his CPS-related copyrights.

Specifically, Greene argued that PowerPoint slides created by Ablon infringed Green’s copyright in his original book.

MGH counterclaimed for ownership of the marks.

The District Court found that Greene was bound by the hospital’s intellectual property policy and thus that the hospital owned the trademarks.

The District Court concluded that the co-authored book was a joint work, but not a derivative work based on the first book, under the Copyright Act.

The jury awarded Greene $19,000 in statutory damages for copyright infringement based on the slides.

The First Circuit held that the District Court erred in ruling that a work cannot be both joint and derivative as a matter of law, but affirmed on the grounds that the error was harmless.

Greene maintains that, when a derivative work is created jointly, each co-author owns only the contributions he or she personally penned. However, nothing about the limited scope of a derivative work copyright upsets the ownership regime that normally arises when more than one author contributes to a work. When the authors of a derivative work are joint authors, they share equally in the copyright to the derivative work, regardless of who penned the new material. [cite] Thus, Greene has no greater claim than Ablon to any of the original expression in Treating Explosive Kids, and he cannot claim copyright infringement on the basis of Ablon’s use of that original expression in his PowerPoint slides.

Emphasis added.

The case is Greene, et al. v. Ablon, et al.


As the court noted,

[T]he owner of the copyright in the original work may sue the author(s) of a joint-derivative work who make further derivative works which employ pre-existing material from the original work without the permission of the owner of the original work.

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