Blog Copyright

Introduction

Almost all of us have known or know someone who has joined with another individual, whether as literary authors, artists, colleagues, scientists, novelists, or musicians, to draft or create the next great novel, an article for the local bar association newsletter, scientific report, musical composition, artwork or some other piece of copyrightable subject matter. As the saying goes, two heads are better than one; and the combination of two or more individuals’ creativity or knowledge often can produce a superior product.

All too often, however, individuals dive into such projects without first considering what would become of their authorship rights in the project if a dispute arose between the parties involved. This article explains what works may be copyrightable, details the rights of joint authors of such copyrightable works, and reviews basic joint author dispute scenarios and potential outcomes of those disputes.

Copyrightable Works and Joint Authorship

Copyright exists in a work when it is an original work of authorship, fixed in a tangible medium of expression. Generally, this means that as long as the work is original – or, in some cases, even if it is identical to another but the author had no access to the other work – it is within one of designated areas of copyrightable subject matter as set forth by Congress, and it has been fixed by writing or some other means of recordation, the work will be eligible for copyright protection at the instant it is fixed. No federal registration is necessary for copyright protection, though federal registration is often beneficial as it is relatively inexpensive, relatively quick, and offers authors several benefits, including statutory damages if their copyrights have been infringed.

Generally speaking, the author of a copyrightable work is simply the one who creates the original copyrightable material. However, determining if two or more parties are joint authors in a work is much more difficult. Several requirements must be met before all parties involved are granted authorship rights in the work. First, the collaborators must manifest intent to merge their contributions to the work. “According to the legislative history, the requisite intent will be found ‘if the authors collaborated with each other, or if each of the authors prepared his or her contribution with the knowledge and intention that it would be merged with the contributions of other authors as ‘inseparable or interdependent parts of a unitary whole.’” (Alexander Lindey and Michael Landau, Lindey On Entertainment, Publishing and the Arts 1-59 (3rd ed. 2008))  Furthermore, the desire to make the contributions part of a single end product must be evidenced at the time of creation.

For example, joint authorship may be found where a literary author and a photographer discuss their joint interest in authoring a new book about pictures. The author agrees to write the text and the photographer agrees to supply the pictures, to be joined together in one book.  Once the text is written and the photographs are inserted, joint authorship in the work would likely be found, barring some other requirement of copyright that may not be met.

Finally, there is no requirement that each author contribute the same amount of work to the end product. The only limit to this rule is that each respective contribution be at least something more than de minimis.

Ownership Rights of Joint Authors

Unless there is an agreement to the contrary, joint authors are generally considered tenants-in-common of a work and share an equal and undivided interest in the work. The courts have uniformly recognized that one joint owner is accountable to the others for his ratable share of the profits that he has realized from his use of the work. (1 Melville B. Nimmer and David Nimmer, Nimmer on Copyright § 6.12 (2008)) Furthermore, while neither has the right to transfer the work to another via an exclusive license, each has the right to transfer the work by way of a non-exclusive license.

Additionally, a joint author may create derivative works based on the original.   However, rights in the derivative work remain in both authors. If creative enough, the work may be considered an entirely new work, with the exclusive rights of the new work belonging solely to the author of the new work.

Resolving the Dispute

So, where does this analysis leave us if a dispute between joint authors arises? First, it must be determined, based on the statutory and case law, whether the authors are indeed joint authors. Then the parties must determine what authorship rights and obligations they possess. Let’s review some sample scenarios:

A musician asks his buddy to stand in and perform the chorus line or “hook” of the song he is recording and his friend agrees. His buddy performs his minimal contribution admirably and hears nothing from his musician friend for months. One day, he discovers that the musician has produced, distributed and sold the sound recording to his fan base and has made a profit doing so.

Here, it seems there was intent to merge the works at the time of creation. The musician needed his buddy’s performance of the chorus line for the final sound recording and his buddy agreed to perform. Additionally, the chorus line and the other parts of the song would likely be found inseparable or interdependent. Therefore, the friend who performed the chorus line, assuming his performance was something more than de minimis, is a tenant-in-common owner of the sound recording with an undivided interest in the sound recording. While the musician has the right to license the work on a non-exclusive basis and even produce, distribute, and sell the work without his friend’s knowledge or consent, he does owe his friend a duty of accounting for any profits made. He now owes his friend, assuming there was no agreement that states otherwise, 50% of any profits he has made from selling the sound recording featuring the performance by his friend.

In another situation, two co-workers who are widely considered experts in the field of child parenting decide to work together on a book about parenting strategies. The co-workers work tirelessly on the weekends outlining the book chapters together and taking turns on the computer assembling the final text. Both review and edit each other’s contributions. After a few disagreements, the co-workers stop work on the book and insist that the other comply with the other’s suggestions. When Author 1 continues with the work on his own without input from Author 2, Author 2 threatens Author 1 with a copyright infringement action and insists that Author 1 cease and desist from further work on the book.

Here, there was intent to merge the contributions of each author at the time of creation of the book. Further, the contributions are inseparable and would likely be found more than de minimis. In this situation, both Author 1 and Author 2 have the right to continue work on the book independently. If their revised versions are substantially similar to the original version created by both authors or if they are close enough to qualify as derivative works of the original, then both authors owe the other a duty of accounting of profits from their creations as well as the other rights of joint authorship. However, if each creates a work that is different enough to qualify as an entirely new work of authorship, then each has the exclusive rights to their respective new works.

Interestingly, Author 2 would be unsuccessful in his infringement claim. Because both individuals are considered authors of the work, where there contributions are inseparable and their interests in the work are undivided, an infringement suit would be tantamount to an author suing himself for infringing his own copyright.

The proposed outcomes provided in these scenarios are overly simplified and do not address all of the particular offensive and defensive arguments a party would likely make.  These scenarios are simply intended as examples of how each situation could play out. Of course, the best way to avoid such disputes is to make an agreement between the parties before the project has begun.

Conclusion

Joint authorship disputes can be difficult to resolve. First, it must be determined if the work is a product of joint authorship. If it is determined to be a work of joint authorship, then each author’s rights and obligations must be determined. Possessing a firm understanding of the issues involved is a must when helping clients to resolve joint authorship disputes.  Therefore, it is recommended that an attorney knowledgeable in the field of copyright generally and joint authorship issues specifically handle these matters.