If you've ever collaborated with partners, contractors, or art directors to produce a creative work, you may already know that issues of copyright ownership can get murky very quickly, unless all the collaborators have a clear understanding of (a) how U.S. copyright law works and (b) what the parties intend—ideally based on a well written contract. This article will give you a broad overview of the copyright implications of collaborating with others on creative works, and how you might be able to avoid disputes over copyright ownership.
Co-Authorship & Co-Ownership of a Joint Work:
Under the U.S. Copyright Act, the authors of a joint work are co-owners of the copyright in that work. 17 U.S.C. § 201(a). The Copyright Act defines "joint work" 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." 17 U.S.C. § 101. In other words, if you are collaborating with others to create an overall piece of work that is inseparable—such as a graphic novel, a documentary film, or a mural—then you and your collaborators are co-authors or joint authors of the work. Collaborator, co-author, and joint author are synonymous under the Copyright Act.
Note that joint works are different from collective works, i.e., collections of works by different authors—such as an anthology, magazine, or compilation—which contain separable works by different authors. And, the issue of copyright ownership between collaborators and co-authors is separate from that issue of intellectual property ownership between employees, employers, and independent contractors. If you're not sure what your specific situation entails, it may be a good idea to consult an intellectual property attorney in your area.
Default Rules Under U.S. Copyright Law:
The U.S. Copyright Act provides the default rules for who owns what when it comes to joint works, or collaborations between two or more authors. As stated above, co-authors are co-owners of a joint work. This means that each co-author is entitled to an undivided interest in the work as a whole. In other words, each co-author owns the copyright equally, regardless of the extent of their authorship. For example, even if you did 95% of the work and your collaborator only did 5% of the work, you still share equally in the ownership of the copyright. Having an undivided interest in the joint work means that each co-owner can license or transfer their interest to another without permission from the other co-owner(s), and each have independent standing to sue for copyright infringement without needing to join the other co-owner(s). See Sybersound Records, Inc. v. UAV Corp., 517 F.3d 1137 (9th Cir. 2008). However, each co-owner is subject to a duty of accounting to the other co-owner(s). That is, a co-owner who unilaterally exploits the joint work must account to the other co-owner(s) for profits derived from such exploitation. See Goodman v. Lee, 78 F.3d 1007, 1012 (5th Cir. 1996).
Contract Tips for Co-Authors of a Copyrighted Work:
The Copyright Act's default rules come into play when the co-authors do not have a contract stating otherwise. However, you can always draft your contracts around the default rules. For example, if you do not intend for each co-author to have an undivided interest in the work under the default rules, then you'll have to draft very clear contract terms addressing the following:
Who owns the copyright in the work as a whole?
Who owns the right to revise the work?
Who owns the right to prepare derivative works based on the original work?
Who owns the right to market and monetize the work?
Who will be entitled to the revenues from the commercial exploitation of the work?
Who is entitled to sue for copyright infringement, and can they do so independently or must they join the other co-owner(s)?
Who, if anyone, will warrant that the joint work does not infringe on anyone else's intellectual property rights?
Who, if anyone, will indemnify the other co-owner(s) against against third party claims of copyright infringement?
And, even if you do intend to abide by the default rules under the U.S. Copyright Act, it's still a smart business move to have a well-drafted agreement that reflects the parties' intent with respect to the ownership of the joint work. That way, each co-owner will know what to expect from the collaboration, thereby minimizing the risk of intellectual property disputes between the co-authors of the joint work.
At Res Nova Law, our friendly and knowledgeable attorneys can advise you on the different types of intellectual property (including patents, trademarks, copyrights, and trade secrets), and how developing and protecting your intellectual property can help your business generate revenue and grow. And, as experienced litigators, we can also help you resolve intellectual property disputes and avoid potential litigation. Get in touch today with our team today.