Cite as 886 F.2d 1081 (9th Cir. 1989)
code. The owner’s “general assistance and contributions to the fund of knowledge of the author did not make [him] a creator of any original work, nor even the co-author. It is similar to an owner explaining to an architect the type and functions of a building the architect is to design for the owner. The architectural drawings are not co-authored by the owner, no matter how detailed the ideas and limitations expressed by the owner.” Id.[1]
We conclude that the Whelan court’s analysis is sound. Goodman, in our view, is not a joint author of the payroll programs. She did nothing more than describe the sort of programs Payday wanted S.O.S. to write. A person who merely describes to an author what the commissioned work should do or look like is not a joint author for purposes of the Copyright Act. 17 U.S.C. § 101 defines a “joint work” as a “work prepared by two or more authors.” To be an author, one must supply more than mere direction or ideas: one must “translate[] an idea into a fixed, tangible expression entitled to copyright protection.” Community for Creative Non-Violence v. Reid, — U.S. —, 109 S.Ct. 2166, 2171, 104 L.Ed.2d 811 (1989). The supplier of an idea is no more an “author” of a program than is the supplier of the disk on which the program is stored. Cf. 17 U.S.C. § 102(b) (no copyright protection for ideas); 17 U.S.C. § 202 (copyright distinct from material object in which work is embodied). We therefore decline to affirm the district court’s grant of summary judgment on the alternate basis of joint authorship.
3. Work for Hire
Chu and Koyama continued to work on the payroll programs for S.O.S. between the time their formal employment relationship with S.O.S. ceased and the time they began working directly for Payday. This interim work was most likely not work for hire, in which case copyright in that work would not automatically have vested in S.O.S. 17 U.S.C. § 201(a), (b); see also Community for Creative Non-Violence, 109 S.Ct. at 2178–79. Whether Chu and Koyama remained “employees” for purposes of the work for hire doctrine after their formal employment relationship with S.O.S. ceased, and the copyright implications of such a midstream change of status, are questions which we do not reach on this appeal. The parties did not present evidence or argument on these questions, and the district court did not consider them. We will generally not consider issues which were not presented to the district court. See Bolker v. C.I.R., 760 F.2d 1039, 1042 (9th Cir.1985).[2]
- B. Copyright Infringement
The district court granted Payday’s motion for summary judgment on S.O.S.’s claim of copyright infringement. The district court concluded that because Payday had a license to use the payroll programs, it could not infringe S.O.S.’s copyright. It also held that California law required that the contract be construed against S.O.S., placing the burden on S.O.S. explicitly to restrict Payday from making modifications. Absent such a restriction in the contract, the district court held, Payday acquired the unrestricted right to adopt and utilize the program.
The district court erred in assuming that a license to use a copyrighted work necessarily precludes infringement. A licensee infringes the owner’s copyright if its use exceeds the scape of its license. Gilliam v. American Broadcasting Cos., 538 F.2d 14, 20 (2d Cir.1976). The critical
- ↑ The Whelan court considered the client’s contributions to the visual displays closer to the sort of creative input necessary for co-authorship, but nonetheless concluded they were “not of sufficient significance” to make the client a co-author of the program as a whole. Id. at 1319. Payday does not allege that Goodman contributed to the visual displays of the payroll program.
- ↑ S.O.S. indicated at oral argument that it had entered into a settlement with Chu and Koyama which clarified the copyright status of their work in favor of S.O.S. Whether the settlement does in fact establish copyright ownership in S.O.S. and the effect on the rights of the parties to this litigation will be matters for the district court to consider on remand.
