Authors at Work: The Origins of the Work-for-Hire Doctrine

The death of the author was announced in literary circles quite some time ago. Rumors of the author's demise were, in my view, premature. The author isn't dead; he just got a job. Unfortunately, as if in a company-man dystopia, he has been subsumed into the identity of his corporate employer.

His disappearance is by now almost complete. Although he has gone on writing, the corporation has become the author of his oeuvre. Yet the desire both to create and to be recognized as a creator is irrepressible. The creative process is both inherently individual and inescapably social.

So even as the author has been submerged as employee, she claims recognition in modern copyright law in other ways--perhaps as a joint author or through moral rights. The history I will tell here of the nineteenth-century law's efforts to mediate the inevitable tension between individual and collective creative rights tells us something about law and the ownership of ideas today. As I explain in the pages that follow, nineteenth-century lawyers tried to short-circuit the difficult and complex issue of balancing individual and collective rights through a neat doctrinal rule granting all rights to the employee, but the tidiness did not last. When, at the turn of the twentieth century, courts and Congress adopted the modern work-for-hire doctrine allocating copyrights to the employer, lawyers again hoped that bright-line rules would prevail.

Again doctrinal confusion surfaced, revealing the underlying tension. Today, the same tension appears in the debate about the desirable scope of joint authorship. The author is not dead, and authorship is not a fiction. It has never been easy to divvy up the honor and the money among the many people, both natural and corporate, who contribute to the creative process.