Joint authorship — when more than one person or entity is involved in working together to create a copyrighted work.

Joint ownership — when more than one person owns rights in a copyrighted work.

Copyrighted works which have joint authors or joint owners (or both) are frequently referred to using catch-all phrases such as joint works or joint copyrights. This is a source of confusion in considering the rights and obligations involved in joint authorship and joint ownership.

Determining whether a copyrighted work is subject to joint authorship or joint ownership legal rules is critical to the process of protecting a copyrighted work and making sure that it will be marketable, and will continue to be marketable. US copyright law is very facts-and-circumstances dependent, and decisions which are made and actions which are taken at the beginning of the creative process will lock copyright authors and owners into a particular legal result, with respect to the intellectual property they are creating. Without the benefit of advance legal planning and analysis of the working arrangement (and, in most cases, a prior written agreement), the copyright consequences of just “jumping in” and creating a commercial creative work are going to be very undesirable, for all parties involved.

This FAQ (guide to Frequently Asked Questions) provides basic information about some common legal questions about copyrighted works, joint authorship and joint ownership.

I want to write a book with someone else. Who is the author for registering the copyright?
The copyright law presumes that a work’s maker is its author. Where two or more people are involved in the creation process, each contributor to a copyrighted work will be authors. (The $64 million dollar question is — Author, of WHAT? Depending on the facts-and-circumstances of the creative process, the authors will either be joint authors, or authors of separate creative contributions subject to separate copyright claims. The most common situation where multiple contributions do not result in joint authorship, is where one or more authors are really creating a “derivative work” of another work, rather than a joint authorship work).

Under US copyright law, you are automatically an author when you personally take part in the creation of a copyrightable work. Because authorship is a fact about how the work was actually created (ie, it is subject to a facts-and-circumstances test), authorship is a legal “status.” Copyright authorship cannot be assigned or affected by contract — unlike copyright ownership, which can be transferred, divided, and assigned and affected by contract. Even if you transfer part of or all of your copyright ownership — if you were involved in the act of creating the work, you will always remain an author.

Should I sign a contract to do some freelance designs on the computer that says that I’m not the author, but the company is?
See the question and answer above.

Copyright authorship is extremely important to determine, because the length (duration) of copyright protection given to a work is determined by the author’s lifespan plus 70 years (in the case of a “work for hire” made by an employee, the duration is a set period of 95 years).

Because authorship is a concept with such important consequences, it is necessary to determine the copyright authorship of a work and report it correctly in registering copyrights. Because authorship is a legal “status” which applies due to the actual facts-and-circumstances surrounding the creation of the work, contracts cannot dictate who the author of something is; that is determined by the facts.

To directly answer the question above – it is possible that the company or person is trying to hire you to make a “work for hire.” If this is true, the hiring party will legally be the author for copyright authorship, copyright ownership, and copyright registration purposes, and the length of protection will be 95 years in the case of a company, and life + 70 (the individual hiring party’s life) in the case of a person.

And here’s the “joint creation” factor — based on the facts-and-circumstances of actual creation and the creative contributions made by the parties, it’s also possible that you and the hiring party will be joint authors (and, as a consequence, joint owners) on the project.

My sister helped me come up with the design for a ceramic plate. Are we joint authors?
Whether a creative work has more than one author is determined with reference to two things: A. there is a facts-and-circumstances question; PLUS, B. there is a question of the parties’ intent.

There are two types of joint authorship:

• Joint authorship where the contributions of each author are inseparable
• Joint authorship where the contributions of each author are interdependent

Inseparable contributions to a copyrighted work result when two or more authors work closely together in the process of creation — to the point where their separate contributions cannot be easily identified as coming from either author alone.

Interdependent contributions result when two or more authors each work primarily apart in the process of creation, or on different sections, but where each contribution depends heavily on the others for the work to have meaning as a whole.

Songs are a classic and well-known example of interdependent contributions: the lyrics and music of a song are separately identifiable parts of a creative work, and are frequently written by different people at different times, but are usually interdependent.

Joint authorship under US copyright law also requires intent — without the intent to create a joint work, two or more authors producing inseparable or interdependent creative works, will produce copyrighted works which fall into the categories of derivative works or compilation works.

I took a photo out of a magazine, scanned it into the computer, and changed the background behind the people. Do l have a joint copyright with the photographer?
First of all, let’s not use the term “joint copyright.” Let’s talk about the separate aspects of joint authorship and joint ownership of copyrighted works.

Photoshop® and digital imaging technology generate over 75% of my copyright-related requests for copyright analysis and opinion letters.

Creative works which are based on other works or incorporate parts of other works, are called derivative works. Derivative works and compilation works (compilation works are collections of copyrighted works) are frequently confused with joint authorship and joint ownership copyrighted works. Under a facts-and-circumstances analysis, copyright authorship and copyright ownership for these two types of works comes out very differently.

A derivative work “depends on” a preexisting work as a starting point and incorporates some or all of the preexisting work. New versions of existing computer programs, new editions of textbooks, movies or plays which are made from novels, stuffed toys which represent popular cartoon characters — these are common examples of derivative works. Here’s the US Copyright Act definition of a derivative work:

Section 101. Definitions

Except as otherwise provided in this title, as used in this title, the following terms and their variant forms mean the following: . . .

A “derivative work” is a work based upon one or more preexisting works, such as a translation, musical arrangement, dramatization, fictionalization, motion picture version, sound recording, art reproduction, abridgment, condensation, or any other form in which a work may be recast, transformed, or adapted. A work consisting of editorial revisions, annotations, elaborations, or other modifications which, as a whole, represent an original work of authorship, is a “derivative work”.

And here’s what the US Copyright Act has to say about derivative works and compilations:

Section 103. Subject matter of copyright: Compilations and derivative works

(a) The subject matter of copyright as specified by section 102 [17 USC Section 102] includes compilations and derivative works, but protection for a work employing preexisting material in which copyright subsists does not extend to any part of the work in which such material has been used unlawfully.

(b) The copyright in a compilation or derivative work extends only to the material contributed by the author of such work, as distinguished from the preexisting material employed in the work, and does not imply any exclusive right in the preexisting material. The copyright in such work is independent of, and does not affect or enlarge the scope, duration, ownership, or subsistence of, any copyright protection in the preexisting material.

So, the right to create derivative works belongs exclusively to the copyright owner of the rights to the preexisting work(s) upon which the derivative is based. Under Section 106 of the US Copyright Act, the right to prepare derivative works belongs exclusively to the owner of a copyrighted work.

However — the rights in the portions of the derivative work which are new and are not part of the preexisting work(s), are owned by the creator of the derivative work. This creates the possibility that there will be many “patches” of content in a single derivative work, with possibly multiple “layers” of ownership rights in each patch.

Unauthorized creation of derivative works and compilations creates a very common “Mexican standoff” situation where a copyright owner of rights in the subsequent derivative work or compilation cannot commercialize, market or distribute the derivative work, without after-the-fact permission (ie, licensing, or “ratification”) from the owner of rights in the preexisting work. In most cases, making an unauthorized derivative or compilation is a violation which can lead to damages (or prison) for civil or criminal copyright infringement.

This area of the law has recently been the subject of much and controversy and cultural concern — starting with the rise of digital sampling in the music industry, and now accelerating, as mashups proliferate and companies and individuals mix and remix music, images, software and other content without negotiating rights in advance.

Analyzing the legal status of copyright ownership for a derivative work or compilation work which incorporates bits and pieces of several preexisting works in several places is sometimes called “copyright due diligence” or “chain of title” analysis. (Copyright analysis is very similar to the type of title analysis that is performed by a title company as part of a purchase of a home or other piece of real estate.)

Analyzing the legal status of copyright ownership for joint authorship, joint ownership, or derivative works or compilation works, is something that a lawyer or other experienced copyright professional should perform. Companies and people who believe they hold valid claims of copyright authorship or copyright ownership frequently hire an expert to do this type of analysis and give an “opinion letter” on authorship and ownership. It is not uncommon for experts to disagree on the outcome in a particular case. Intellectual property opinion letters are usually required in transactions where companies are buying copyrights and other intellectual property rights for publishing, marketing and distribution, and other commercial purposes.

To summarize, derivative works are distinguished from joint authorship and joint ownership by facts-and-circumstances legal analysis which takes into account the facts and circumstances surrounding creation of the copyrighted work, and the intent of the contributors.

In a work of joint authorship, two or more contributors are doing their creative work at approximately the same time, and intend their work to be combined.

Where one work is finished before the creation of another work which depends on it is started — a derivative work or compilation work usually results.

If I collect together a bunch of letters written by other people to me, and publish them, is the book a joint work?
This is a classic compilation work or collective work as those are defined in the copyright laws. Here’s the definition, and what the US Copyright Act says, about compilations and collective works:

Section 101. Definitions

Except as otherwise provided in this title, as used in this title, the following terms and their variant forms mean the following: . . .

A “collective work” is a work, such as a periodical issue, anthology, or encyclopedia, in which a number of contributions, constituting separate and independent works in themselves, are assembled into a collective whole.

A “compilation” is a work formed by the collection and assembling of preexisting materials or of data that are selected, coordinated, or arranged in such a way that the resulting work as a whole constitutes an original work of authorship. The term “compilation” includes collective works.

Section 201. Ownership of copyright

(c) Contributions to Collective Works. — Copyright in each separate contribution to a collective work is distinct from copyright in the collective work as a whole, and vests initially in the author of the contribution. In the absence of an express transfer of the copyright or of any rights under it, the owner of copyright in the collective work is presumed to have acquired only the privilege of reproducing and distributing the contribution as part of that particular collective work, any revision of that collective work, and any later collective work in the same series.

Compilations and collective works assemble a number of individual works or components which are preexisting works subject to different copyright ownership, into a whole work. Databases, magazines, encyclopedias, collage artwork, and anthologies are examples of compilations and collective works. The owner of the copyright for a preexisting work which is part of a compilation or collective work continues to hold all rights in the individual work — the “author” (the editor) of the compilation or collection holds a copyright in the compilation work or collective work’s overall selection, arrangement, and presentation.

Compilations and collective works can be authorized or unauthorized. See the answer above on “derivative works” for the consequences of unauthorized compilations and collective works.

If joint authorship is determined by the facts at the time a copyrighted work is created, what is joint ownership?
Ownership of a work may be split in two ways — all rights split in a similar manner between a group of owners, or some rights to some owners. Joint authors of a work always start out as joint owners of all rights the work. Unless there is a written agreement saying otherwise and setting out authorship contributions and percentages, joint authors split their ownership equally in a pro-rated manner — if there are five contributors, they will each own an equal one-fifth (1/5) part of the whole bundle of copyright rights.

How could I end up as a joint owner of a work?
A person can become a joint owner in a copyrighted work by authorship, as I stated in the previous question and answer.

However, most joint owners become joint copyright owners by contract or inheritance. If an author transfers a one-half (1/2) ownership interest in a copyrighted work to someone else, there will be 2 joint owners. If one of those owners decides to transfer the interest to two others in equal amounts, there will be three owners — one with 50%, and two with 25%.

This may seem similar to rules about real estate and personal property (such as bank accounts) where ownership is described as “tenants in common” or “joint tenants” or “tenants by the entireties” or “community property.” That’s because a copyright is a type of personal property (intangible personal property) and the rules governing the ownership and disposition of real estate (real property) and personal property are governed by state law, and not federal copyright law.

So, in order to perform a joint ownership analysis, a copyright attorney will need to consider not only federal copyright law (and possibly the laws of other countries, if the creative work was not created on US soil) — but also the laws of the individual states where the copyrighted work was created, and the laws of the individual states where any transfers or other transactions took place (“copyright events”).

If I own a copyright jointly, can I sell it to someone else? Do I need the permission of the other joint owners?
Joint owners with a percentage share of ownership of all rights in a copyrighted work (“full joint owners”) have certain nonexclusive rights in the copyrighted work while they continue to be a joint owner. They also have certain obligations to the other joint owners. Full joint ownership rights include a right to make unlimited nonexclusive licenses of the full joint ownership right or any subset of rights. The obligations of a joint owner of a copyrighted work includes something which is called a duty to account.

The right-to-license rule says that any joint owner of a partial interest in all rights to a work may grant a nonexclusive license in any rights in the whole work, without informing or getting the permission of the other owners. The duty-to-account rule says that any joint owner who generates income from licensing a jointly-owned work has a duty to contribute a portion of any profits made (or contribute for any damage or decrease to the marketability of the work), to the other joint owners, in proportion to their percentage of joint ownership. The duty to account continues indefinitely: two joint owners of a copyrighted work who have not seen each other in years (and who frequently might not be on speaking terms) may be stuck in an indefinite legal relationship together where both are actively profiting from the copyright, and are therefore obligated to provide ongoing payments and reporting to each other. This is a terrible legal outcome which usually reflects poor planning or a lack of knowledge about joint ownership laws concerning copyrights.

Selling a copyright which is subject to joint ownership involves the agreement of all the joint owners. While a joint owner may license one or more of the rights in a jointly-owned copyrighted work without the permission of the others, he or she may not make an exclusive license or sale of copyright rights without all the owners’ consent in writing. However — a joint owner is always free to transfer his or her partial interest in the whole work (“full joint ownership interest”) to another party without the permission of the other owners.

As an experienced copyright attorney who is also a business attorney, I constantly encounter legal situations where managers, attorneys, business consultants and other professionals have set up joint ownership situations in copyrighted works (generally, this happens via disbanding a musical group, negotiating a property settlement in divorce, or in connection with a partnership windup, shareholder buyout, or corporate liquidation). When you consider these examples in the context of this article, it becomes clear that unintended ownership consequences can result, which can prevent a copyrighted work from being effectively marketed and distributed or otherwise commercialized.

If you are a frequent creator of copyrighted works, a copyright joint owner, or an attorney, consultant or business manager representing a copyright creator or a joint owner — you should consider joint copyright ownership to be very similar to the ownership of stock in a closely-held corporation. Just as stock ownership in a privately held corporation should always be subject to the terms of a “buy-sell” or stock restriction agreement, joint copyright ownership should be discouraged. Where it is called for, it should be the product of careful planning and restrictive authorship and/or ownership agreements (ideally, in advance of the creation of the work, or the joint copyright ownership situation).

I am creating a software application with two collaborators. Because it was my idea, we agreed that I will own 50% of the copyright and the other two will own 25% each. We started working on the project several months ago and I am finally ready to apply for a copyright. How do I fill out the copyright registration form?
Excellent question.

Was there an agreement between you in place prior to starting work? If so, what did it say?

If there was no written agreement in place before you started work, we will need to perform a copyright authorship and ownership analysis, to see whether the copyright in the creative work done to date is subject to joint authorship or joint ownership.

Let’s assume all contributions to the software are interdependent and there was an intent to create a work of joint authorship (intent is one of those things that you don’t need a written agreement for, it can be inferred from the acts and behaviors of the contributors). What does the law say about joint ownership?

Because the three contributors did not have a prior agreement allocating joint authorship and joint ownership, the law presumes they are equal in standing. So, each of the three creative contributors will automatically get pro-rated credit for one-third (1/3) of the authorship. Further, because joint authors automatically become joint owners, each of the three contributors will automatically become a one-third (1/3) joint owner in the copyrighted work.

Can you see the problem? Now the initiator of the project must rely on each contributor to sign paperwork which confirms a prior oral discussion about ownership which has not been formalized in a contract or other written form. Further, the proposed agreement calls for something different (50% - 25% - 25%) from the actual legal status of ownership (33.33% - 33.33% - 33.33%) resulting from the creative contributions.

Here’s what always happens in these situations: one of the contributors who will be receiving one of the proposed smaller shares (let’s say, Contributor #3) is presented with a legal contract setting out the transfers necessary to accomplish the 50-25-25 ownership split. Contributor #3 is suddenly unsure and/or receives advice to have the agreement reviewed by an attorney specializing in intellectual property law.

What advice is Contributor #3’s copyright attorney going to give? “You had an initial discussion where you tentatively agreed that you might take a one-quarter interest in this work for one-third of an authorship contribution. You did not know at the time that you were entitled to a one-third interest in ownership.” Contributor #3’s attorney will undoubtedly advise Contributor #3 not to sign such an agreement (indeed, it would probably be professional malpractice for Contributor #3’s attorney not to advise in this manner).

In such cases, the discrepancy between the operation of the law and the discussion of the parties results in a legal situation (through lack of advance planning and contract formation in advance of creation) where the principal creative partners are locked in an ownership conflict. Most times, a project saddled with ownership squabbles will not make it to completion and the possibilities for commercialization will be lost.

DOs AND DON’Ts FOR JOINT OWNERSHIP

• Because joint owners can license a work nonexclusively without consulting any of the other joint owners, joint ownership poses a serious threat to the most lucrative commercial uses of a work — because any one joint owner may perceive his or her interests to be better served by cutting out the others by cutting a separate deal.

• Exclusive rights are always worth multiples in value over nonexclusive rights — so each joint owner stands to benefit far more from a partial interest in a single exclusive license. However, the more joint owners, the smaller each share, and the more likely that one joint owner may cut a separate deal for nonexclusive rights.

• If more than two people are involved in the creation of a copyrighted work, they should ensure its continued value and marketability by signing a written agreement before creation to allocate joint authorship and joint ownership — or at the very least, immediately after creation. Such agreements should limit all joint owners’ abilities to license away rights in the work without the others’ permission, and should state that if any joint owner transfers his or her rights in the work, the intended recipients of the transfer will also be bound as a condition of transfer, not to exploit the copyrighted work without being subject to a similar limiting agreement.

Copyright 1999 - 2007 Carol Ruth Shepherd.

If you have issues concerning copyrights and copyright ownership and you need to consult an experienced copyright attorney, you can reach Carol at (734) 668-4646.