dissenting.
I agree with the majority that the district court improperly granted Ms. Janky summary judgment on the issue of copyright ownership. However, I cannot agree with the majority’s conclusion that the Bureau is entitled to summary judgment under our precedent in Erickson v. Trinity Theatre, Inc., 13 F.3d 1061 (7th Cir.1994). I therefore must respectfully dissent.
In reviewing the district court’s grant of summary judgment, “we consider only those matters that were before the district court when it entered the judgment.” Hildebrandt v. Ill. Dep’t of Natural Res., 347 F.3d 1014, 1024 (7th Cir.2003) (citation and quotation marks omitted). To establish that Ms. Janky and Farag intended to create a joint work under Erickson, the Bureau needed to show (1) that Farag and Ms. Janky “intended to be joint authors at the time the work was created” and (2) that Farag’s contributions to the song were independently copyrightable. See Erickson, 13 F.3d at 1071. When the district court considered Ms. Janky’s motion for summary judgment on copyright ownership, there was little evidence regarding Farag’s intent to become a joint author. In its motion opposing summary judgment, the Bureau presented a certificate of registration for a joint copyright as evidence of Farag’s intent. See R.71, Ex. 2. However, Farag stated in his counterclaim that his name was forged on the copyright application, which cast doubt on the Bureau’s claim that Farag intended to create a joint authorship. See R.64, Ex. B-l.
Farag stated in his declaration that he was an “owner and/or co-owner” of the song, R.29, Ex. 6 at ¶ 6, and Ms. Janky’s declaration acknowledged that Farag revised her original work “by 10%,” R.29, Ex. 1 at ¶ 5. Nevertheless, there was no evidence before the district court establishing that Farag intended to create a joint work, as required under Erickson, 13 F.3d at 1071. Moreover, Farag’s notice of affirmative defenses stated that Ms. Janky did not own the copyrights at issue, R.64, Ex. B-2 at ¶ 8, a view that undermines the Bureau’s claim that Farag intended to create a joint authorship with Ms. Janky.
In finding that Farag intended to be a joint author, the majority emphasizes the fact that “Farag wielded considerable control over what the song finally looked like” and that Ms. Janky credited him in the copyright application. Ante, at 362. The factors of decisionmaking and billing were discussed briefly in Erickson and at greater length in a subsequent Second Circuit opinion. See Thomson v. Larson, 147 F.3d 195, 202-03 (2d Cir.1998) (citing Erickson, *36513 F.3d at 1071-72). However, even if we take these factors into account in our analysis, the record at summary judgment does not show that Farag possessed the requisite intent to create a joint work. See Erickson, 13 F.3d at 1071. Consequently, the first requirement for joint authorship has not been met.
I also believe that the Bureau has failed to establish that Farag’s “contributions to the [work] were independently copyrightable.” See Erickson, 13 F.3d at 1071. As the majority observes, we know that Farag’s contributions to the lyrics were his suggestion to Ms. Janky that the song focus on Lake County specifically, and the specific suggestion that the song include a reference to “Chicago’s neighboring south shore”1 and to its ethnic diversity. These contributions do not rise above mere “[i]deas, refinements, and suggestions.” Id. at 1072.
I do not think that the record before us allows us to affirm summary judgment for Ms. Janky or to grant summary judgment to the Bureau on the issue of copyright ownership. I would remand this case to the district court for further proceedings on the merits.
. Short phrases are generally not entitled to copyright protection. 37 C.F.R. § 202.1 (2004); see also Alberto-Culver Co. v. Andrea Dumon, Inc., 466 F.2d 705, 711 (7th Cir. 1972). Consequently, Farag’s addition of the phrase "Chicago’s neighboring south shore” is not sufficient to establish that his contribution was independently copyrightable.