Today, Professor Eva Subotnik joined Professors Jay Dougherty and Jennifer Rothman, both of Loyola Law School, Los Angeles, for a panel discussion at Columbia Law School's symposium (information is available here) addressing instances in which concern for the manageability of "the work" augurs a determination that the claimant is not an “author” in the first place.
Professor Subotnik presented a talk entitled "The Author Was Not An Author," forthcoming in the Columbia Journal of Law & the Arts, in which she looked at the early copyright precedents that considered the role of photographer and photographic subject as a way to think about recent disputes over micro-contributions to a work. Specifically, in Burrow-Giles v. Sarony, the author Oscar Wilde was deemed the photographic subject, and not the author—or even co-author—of his celebrated photographic portrait. Sole authorship was reserved for the photographer, Napoleon Sarony. But cases that followed in the wake of Burrow-Giles did touch upon the possibility of authorial contributions by photographic subjects. Judicial discomfort with that possibility, and presumably the need for line drawing, made these claims unsuccessful. Against that backdrop, it is perhaps easier to contextualize the Ninth Circuit's recent opinion in Garcia v. Google, in which the en banc court determined that an actress was not likely to succeed on a claim that she owned a copyright interest in her own acting performance in a film.