Often two or more people will decide to work together on a collaborative project that results in the creation of a copyrightable work, such as a book, videotape or even a software program. More often than not, these projects proceed based on a handshake and the goodwill between the parties. But inevitably questions arise relating to the allocation of profits and the assumption of expenses associated with production, marketing and distribution of the joint work. It is at this point that the parties start focusing on their rights and responsibilities as joint authors.
The test for joint authorship is whether the parties intended that their respective contributions be merged into inseparable or interdependent parts of a unitary whole. This does not mean, however, that the contributions of the joint authors need be equal in quality or quantity, or even that the joint authors work together. In fact, one joint author need not even know who the other joint author is. As long as each author makes more than a de minimis (or minor) contribution, and as long as each author intends for his or her contribution to be combined with the work of another, then the work is one of joint authorship. The parties need not fully appreciate the ramifications of joint authorship in order for the intent element to be satisfied; it is enough that they intend for their respective contributions to be merged into one joint work.
A joint work is to be distinguished from a collective work. The difference between a joint work and a collective work lies in the intent of the contributing author. If the author intends for his contribution to be published along with but not merged into one or more contributions from other authors, then the work is a collective work as opposed to a joint work. For example, an anthology of poems would constitute a collective work, whereas a motion picture would be a joint work consisting of contributions from the writer of the screenplay, the composer of the musical score, the director, the photographer, the actors, the set and costume designers, and the software developers. In order for there to be a work of joint authorship, all of the contributing authors must have the same intent.
Although courts are split on what constitutes a “contribution” (and, more specifically, whether the contribution of each author must be separately copyrightable), the prevailing view is that the contribution of ideas is enough to constitute joint authorship, as long as the contribution is more than de minimis and as long as the intent requirement is met. Financial contribution, on the other hand, is not enough to constitute joint authorship.
Once joint authorship is established, the consequences are significant in terms of control over the joint intellectual property and the allocation of profits resulting from the commercialization of the joint work. With a joint work, each author has an undivided ownership interest in the entire work, as well as all derivative works. One author may grant a non-exclusive license to a third party without the consent of the other joint author, but an exclusive license may not be granted without the consent of both authors. (An important caveat to this right is the fact that in many foreign jurisdictions, a license will not be enforced unless is entered into by all of the joint owners.) One author may transfer his or her ownership interest to a third party without the consent of the other author, but the transferee then assumes the same rights as the previous joint owner.
With respect to the allocation of profits, the distribution of profits need not be
commensurate with each author’s contribution. Instead, once joint authorship is established, each author has the right to his or her pro rata share of the profits. In other words, if there are two joint authors, then each author has the right to receive 50% of the profits, regardless of the proportionate contribution of each author.
If a joint author desires greater control than he or she would otherwise have under copyright law, then that issue can and should be addressed in a written agreement between the parties. For example, the agreement can prohibit unilateral action by either party with respect to the joint work. The parties can also agree to an allocation of profits that is other than pro rata. Another important consideration that may be addressed in a written agreement between the joint authors is the subject of derivative works. A derivative work is a separately copyrightable work that is “based in substantial part” on the original work. This definition leaves much open to interpretation, and often the issue of
what will and will not constitute a derivative work can be addressed by agreement.
