Know Your Rights

Since the laws that apply to copyright ownership and partnerships are quite complex, many authors, artists and other creative people do not fully understand their rights and obligations as coauthors or collaborators.

The essence of the collaboration agreement is copyright ownership. Copyright ownership affords the owner, or owners, the exclusive right to reproduce the work, to distribute copies, to display and perform the work publicly, to adapt and prepare derivative works based on the copyrighted work, as well as to license others to do these things.

As tenants-in-common, each joint author, from the moment of creation, owns an undivided equal interest in the whole work. That means that, unless they agree otherwise, two coauthors each own one-half of the entire work; three coauthors each own one-third, etc. This interest applies to the whole work, and portions of the work are not divided between the co-creators without an agreement to the contrary. For example, unless they agreed to a different split, each coauthor of an illustrated children's book, would be entitled to an equal share of profits from any licenses granted in the joint work even if the license was just for the illustrations, or just for the text. Indeed, under copyright law, a relatively small contribution may, absent a contrary agreement, entitle a coauthor to an equal share of profits.

Under the laws of joint authorship, each coauthor may, without the consent of his or her coauthor, grant nonexclusive licenses to others to use the work, subject only to a duty to account to his or her coauthor for profits. In other words, each collaborator can grant permission to a third party to use the work on a nonexclusive basis without the consent or knowledge of his or her coauthor or coauthors. Problems commonly arise when there are multiple offers for the work or requests for exclusive rights and where there is no agreement between the coauthors.

A joint author cannot, however, license the exclusive rights in a work to another party without prior written consent of his or her coauthor. Without the unanimous consent of his/her coauthors, exclusive grants to the entire work are forbidden. Moreover, unlike nonexclusive grants, which may be oral, no assignment of exclusive rights is valid unless it is in writing. In effect, a recalcitrant coauthor can prevent the other coauthor from licensing or assigning exclusive rights in the work to a third party.

Classifying a work as a joint work determines not only initial ownership of its copyright, but also the copyright's duration, and the right of termination. For joint works created on or after January 1, 1978, copyright protection endures for seventy years after the death of the last surviving coauthor.

What Constitutes Joint Authorship?

The formal legal definition of a "joint work" is "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" (1976 Copyright Act, Section 101). For a joint work to exist, the law also requires that each author's contribution be independently copyrightable.

A key element is the authors' intent at the time the work is created. To figure out intent, courts sometimes look for evidence of "billing" or "credit." Accordingly, an author's good faith description of him/herself as sole author on a copyright notice, copyright registration, or elsewhere, may be probative of intent. Secondly, to qualify as a joint work, each author's contribution must be independently copyrightable. In general, ideas, suggestions and refinements standing alone are not protected under the Copyright Act. In Erickson v. Trinity Theatre Inc. (7th Cir., 1994), a federal appeals court held that an actor was not a joint author of a play because his helpful advice and refinements made during improvisational scenes were not copyrightable contributions.

In assessing what constitutes joint authorship, some courts, such as the Second and Seventh Circuits, look almost exclusively at the parties' intent. Other courts look at intent as well as "artistic control." For example, in Aalmuhammed v. Lee (9th Cir. 2000), the U.S. Court of Appeals for the Ninth Circuit, held that "[A] creative contribution alone does not suffice to establish authorship of a movie" because movie making is, by definition, a collaborative effort, involving creative contributions of everyone from cinematographers to lighting directors. In Aalmuhammed, the court determined that an "Islamic Technical Consultant" was not a joint author of the movie Malcolm X, a film co-written, directed and co-produced by Spike Lee. Lacking a written agreement, the court looked at who had creative control, and the parties' intent to be coauthors. Since Spike Lee's name appeared at the top of the credits (i.e., evidence that Aalmuhammed lacked control over the work), and neither Lee nor the movie studio exhibited any intent to be coauthors, the court found that Aalmuhammed's claim to joint authorship was in a word "overreaching."

Nonetheless, one must be aware that each contribution must be considered on a case-by-case basis and that a relatively small creative contribution may, absent an agreement to the contrary, entitle a collaborator to an equal interest in the entire work. Moreover, without a written agreement or release, a court may infer joint authorship from the circumstances.

The Collaboration Agreement: The Creative Prenup

While the written collaboration agreement will vary depending upon the facts, the following are some key issues that should be considered. A word of caution: Collaboration is like marriage. Matrimonial matters, as well as creative matters, include planning. Protection of property rights before the creative process begins, as well as at the time of dissolution, is an important issue that you should address with your creative partner and your lawyer.

Particular care should be applied to dealing with how the proceeds of the work are shared and who controls its use. How collaborators share financial and creative control, ultimately, depends on their bargaining power and actual contribution. However, although one author may have a greater monetary interest in a work, it's not unusual for his or her collaborator to have an equal say in how they exploit the work.

If one collaborator needs money to get through the period in which they are writing the book, the parties may agree that one coauthor receives a larger split of the advance. In exchange, the recipient may forego a percentage of future royalties. Alternatively, these monies can be recouped or refunded from future proceeds, with any additional monies shared as set forth in the authors' agreement. Usually, the sharing of expenses is related to the sharing of receipts.

In some circumstances, where one writer is far more knowledgeable in publishing matters, it may be appropriate to grant that author the exclusive right to negotiate for the parties with respect to agents and publishers. Generally, the junior partner will reserve the right of final approval, which should not be unreasonably withheld.

Billing credits also depend on the bargaining power of the parties. Issues include size and prominence of names as well as order of names on the title page. If there's brand equity in your coauthor's name, it may make sense for that person's name to appear first. Where the division between the authors' contributions is not clear-cut, alphabetical order is a sound approach. Author credit designators include the terms "by Me and You" or "by Me with You" or "as told to Me."

Other issues that should be addressed include creative approvals, sequel rights, repayment of the advance if the manuscript is rejected, warranties and indemnities, death and disability, and how to handle both minor and major disputes.

Dealing With Editors, Consultants, Freelancers and Research Assistants

To avoid "claim jumping" by editors, consultants, freelancers and research assistants, it is very important to have a short, written release that expressly states that their work will be considered a "work-for-hire" for copyright purposes. This ensures that the one who commissioned the work owns and controls the copyright. As a fallback position, in the event the work is determined not to be "work-for-hire," it is essential that the hiring party obtain a written assignment of all or part of the rights.

It is also important to remember that even those who do not qualify as joint authors for copyright purposes -- such as individuals who made an important creative or financial contribution to the finished work -- may still share in the profits and control of a work through an appropriate contractual arrangement. Finally, bear in mind that failure to give proper credit may lead to an unfair competition claim under the Lanham Act.

Conclusion

As discussed, the ideal time to address the major issues confronting contributors and collaborators is before the actual creative process begins. Although coauthors might not feel comfortable discussing long-term financial issues or the eventuality of a dispute or even the death of a partner, it is always easier and less expensive to deal with these issues up front before collaborating, rather than later, after a dispute arises.

NOTICE: This article represents copyrighted material and may only be reproduced in whole for personal or classroom use. It may not be edited, altered, or otherwise modified, except with the express permission of the author. This article discusses general legal issues of interest and is not designed to give any specific legal advice pertaining to any specific circumstances. It is important that professional legal advice be obtained before acting upon any of the information contained in this article.

Lloyd J. Jassin is a New York-based publishing and entertainment attorney in private practice. He is coauthor of the bestselling Copyright Permission and Libel Handbook: A Step- by-Step Guide for Writers, Editors and Publishers (John Wiley & Sons, Inc.), available at bookstores or at http://www.copylaw.com. Mr. Jassin has written extensively on negotiating contracts in the publishing and entertainment industries, and lectures frequently on contract and copyright issues affecting creators. He is counsel to the Publishers Marketing Association and Vice Chair of the Small Press Center. He may be reached at Jassin@copylaw.com or at (212) 354-4442. His offices are located at 1560 Broadway, Suite 400, New York, NY 10036.