Under Copyright law, the default assumption is that the creator of an original work is the “author” of that work and, therefore, the copyright owner of that work. The most common exception to this default assumption is when a work is created as a work made for hire, i.e., when a person is contracted or employed to create a work for another. In a work-for-hire scenario, the party employing or contracting for the services of the creator(s) will be deemed the author of that work and, therefore, owner of the copyright in that work at the point of creation. The contours of work-for-hire are discussed at greater length here.
While creation of an original work – such as a literary work or graphic art work – is often a solitary endeavor involving just one author, it is quite common that original works are created by more than one person (e.g., motion pictures, television shows, or all of those great songs composed by Lennon and McCartney or The Glimmer Twins, aka Jagger and Richards). If a work is created by more than one person, absent an agreement otherwise, each author/creator is deemed to be a joint author and joint owner of the copyright in that work. A joint work is defined in Section 101 of the U.S. Copyright Act as “a work prepared by two or more authors with the intention that their contributions be merged into inseparable or interdependent parts of a unitary whole.” Section 201(a) of the Copyright Act grants co-ownership in the copyrighted work to the authors of a joint work. Under the Copyright Act, a person must show the following to establish joint authorship in a work: (1) that he/she made a copyrightable contribution to the final work; and (2) that all of those contributing to the work intended that their contributions be merged into a unitary whole.
Here at Crown®, we are sometimes engaged after a joint work has been created and as the joint authors turn from the creative process toward the much more rough and tumble process of generating revenue from that work. It is at this point that previously wonderful relations between co-creators during the creative process sometimes devolve into significant battles between the parties as they navigate exploitation of the work and make decisions regarding how a work may, and may not, be used by third parties. Perhaps, for example, one joint author wants to license the co-created graphic design to a tobacco company for use on packaging because the money is good, while the other is very much against having her work used in conjunction with the sale of tobacco products. Perhaps one author wants to license a jointly-created work to an apparel brand for inclusion on t-shirts, while the other feels such licensure will cheapen the art and foreclose other, more lucrative opportunities. Sometimes, despite knowing the other joint author’s objections, one joint author secretly goes ahead and licenses the work to that tobacco company anyway. And in most cases, that’s actually permissible. So, the question is, what can each joint author/joint owner of the work do with it? Luckily, established copyright law provides some guidance:
1.) Each joint author will own an equal ownership share in the entire completed work, regardless of whether one co-author contributed substantially more to the work than the other co-author(s). That means that each co-author actually owns rights to the entirety of the work – not only his/her/their contribution.
2.) Each co-author will own an “undivided” interest in the entire work. Thus, for example, if two people co-create an illustrated children’s book, with one providing the text and the other the illustrations, each will own fifty percent of the entire work. The writer does not own the text while the artist owns the illustrations, since the parties clearly intended that “their contributions be merged into inseparable or interdependent parts of a unitary whole” – an illustrated children’s book.
3.) Any co-author, without necessity of permission from the other co-author(s), may grant non-exclusive rights to the work to third parties. Thus, any joint author can grant a non-exclusive license to a third party as they wish. In the example above, this is how one of the joint authors could possibly grant rights in the work to the tobacco company, despite the other disapproving, so long as that grant was non-exclusive. However, to sell the work outright or grant an exclusive license in the work (one in which no other party can use the work during the term of the exclusive license), the prior agreement of all joint authors is necessary.
4.) Each co-author has a duty to account to the others for any profits received from the exploitation of the work. If one co-owner grants a non-exclusive license without the permission of the other co-owners, he/she/they will still need to account to the other owner(s) and share the profits/royalties.
5.) A co-author may assign his/her/their ownership share in the work to a third party and may bequeath his/her/their ownership share to his/her/their heirs. Of course, the recipient of this interest will be subject to all restrictions and obligations applicable to joint authors.
6.) Each co-author will be entitled to equal authorship credit for the work upon its publication.
To reduce or avoid conflicts between joint authors concerning the exploitation of jointly created works, we strongly suggest that co-creators reach agreement, in writing and, ideally, before the creative work begins, concerning how they will, and how they will not, exploit that work following creation. A Joint Authorship Agreement can allocate rights and duties in the creative work among the co-creators and provide clarity to the parties before the work enters the commercial stream. For example, those co-authors of the illustrated children’s book may agree that the illustrator may exclusively license the illustrations to a third party so long as the illustrations are not licensed for use in a book (since, we assume, the co-creators wish to secure a publisher to publish their illustrated children’s book). They may also agree that the work shall not be used in advertisements relating to tobacco or alcohol products, or any other restrictions or limitations of importance to any one or more of the creators.
In short, if you are working with one or more other people in the creation of an original piece of work, whether it be a musical composition, visual art, a screenplay, literary work, or any other creative endeavor, and you hope to one day exploit that work for money, we strongly recommend entering into a written Joint Authorship Agreement with your co-creators concerning what can, and just as importantly, cannot, be done with the work and its constituent parts after creation.
Here at Crown®, LLP we assist co-creators in reaching and documenting these agreements. Please contact us if we can assist.