Orson Welles’ work has been studied by numerous film and theater scholars, but an Elon University School of Law fellow has written a fascinating look at the creation and ownership of one of Welles’ most famous radio works.
Attorney Timothy J. McFarlin questions the copyright and legal authorship of The War of the Worlds radio play in his soon-to-be-published article An Idea of Authorship: Orson Welles, The War of the Worlds Copyright, and Why We Should Recognize Idea-Contributors as Joint Authors.
The infamous October 30, 1938 broadcast by The Mercury Theater On-The-Air was scripted by Howard Koch (Casblanca) and based on ideas set forth by Welles.
McFarlin persuasively argues that “the benefits of recognizing idea-contributors as joint authors outweigh the fears.” In his 56-page article, McFarlin asks:
Did Orson Welles co-author the infamous War of the Worlds broadcast? The Ninth Circuit Court of Appeals has told us no, primarily because he only contributed the idea behind the broadcast, and ideas alone can’t be copyrighted. “An Idea of Authorship” challenges this premise — that ideas, no matter how significant, cannot qualify for joint authorship in collaborative works — and argues that we as a society should, under certain circumstances, recognize idea-contributors like Welles as joint authors. We should do so to further our society’s interest in encouraging future creations, as well as out of a sense of equity and fairness to idea-contributors, acknowledging the value of ideas to creative work. Recognizing idea-contributors as joint authors would increase the contractual bargaining power of many of our society’s most creative minds and ultimately better foster the free flow of ideas essential to the constitutional goal of promoting the “Progress of Science and useful Arts.”
McFarlin’s article will be published by Case Western Reserve Law Review in 2016.
An advanced draft of the article can be read online at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2690926
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