We’re All In This Together – Joint Authorship

Sometimes a work is created solely and completely by a single author, who is therefore the owner of the entire copyright in the work; for example, a novelist who writes a story from beginning to end. At other times, two or more people work together to create a work, as in the case of a writer and artist for a comic.

When two or more people prepare a work intending that their contributions merge into “inseparable or interdependent parts of a unitary whole” then the result is a “joint work.” “Inseparable” parts cannot be divided, such as two novelists working to create a single story, each adding their own words to the text. “Interdependent” parts are those that are distinct but intended to be a unified whole, such as a script writer and a penciler of art setting out together to create a graphic novel.

The key on intent is that each creator must have the necessary intent at the time the work is created. The intents do not have to be simultaneous, however. A writer can create a script with the intent to later seek out an artist to provide illustrations. At a future time, an artist may read that script and agree with the writer to create the necessary art, resulting in a joint work. One the other hand, if a writer creates a prose novel with no intent that it be illustrated, then there is no joint work, even if an artist later creates illustrations. Similarly, if an artist draws several works but has no intent at the time of creation that the art be merged with dialogue and story, then the necessary intent to create a joint work is absent.

A second issue is the subject of much debate among legal scholars and the courts – whether each contributor’s material must be independently copyrightable. Most courts answer that question with a “yes” but a notable comic case came to a different conclusion (we’ll take a close look at that case in detail in a future post!)

The important thing about joint works is that each owner has equal rights to the work. That means that each owner can exercise the right to use (or “exploit”) the work. For example, each co-owner can reproduce the work, create a derivative work, distribute the work, etc. (see the discussion of the bundle of rights here). A co-owner does not need the permission of the other co-owners to exercise these rights, provided that any resulting revenue is shared equally among all co-owners. The major limitations are that a co-owner of a joint work may only grant non-exclusive licenses (the grant of an exclusive license requires the agreement of all co-owners) and the licensing cannot cause destruction of the work (but what constitutes “destruction” is a pretty grey area in the case law). Obviously, if the co-owners disagree as to how to exploit the work, there is an appreciable risk of mischief and infighting, but the old axiom of “what’s good for the goose is good for the gander” can limit contention. In addition, the co-owners can agree to enter into a collaboration agreement that sets out different rules to be applied to them for the work. For example, the co-owners may agree that a majority or unanimous decision be made to grant a license, or that royalties are shared unequally, or otherwise customize the relationship. Regardless of how the relationship between joint authors begins, it is a good idea to have a collaboration agreement in place early on, perhaps even before the work is created, so that everyone is on the same page and has the same expectations regarding the use of the work.