Growing up, we’re taught that teamwork is a great thing and that it brings the best out of all of us. This is why schools love to assign group projects and the idea of working on a team plays a major role in everything we do, all the way through college and into the workplace.
However, as we become adults, especially ones working in a creative field, we see that teamwork is not always the best way to get results. Design by committee is a common way to express designs that stink and expressions such as “Too many cooks spoil the broth” begin to become accepted cliches.
Though teamwork certainly has its place, creating copyrighted works with a co-author or multiple co-authors is not, usually, well-advised. The reason is that copyright law deals with works of joint authorship in a very brutal and confusing matter that can leave you high and dry very easily.
If you create works of joint authorship without a good contract, you could find yourself in a world of hurt. Because, while good friends only rarely make great creative works, good creative works often times great ruin friendships.
Here’s why you should avoid joint authorship if at all possible.
What is Joint Authorship?
Joint authorship is pretty much exactly what the title sounds like, it is when two or more people come together and create a copyrighted work and share the authorship (and thus the copyright) in it.
Specifically, the Copyright Act defines it as follows:
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.
Though there are many elements to that one statement, the important one is that all of the authors must have intended that their contributions would be merged as parts of a whole at the time of creation. For example, if you wrote a poem and someone else, with your permission, used the work in a novel it would NOT be a joint authorship. However, if you wrote sections and chapters of that novel knowing it would be released as single work, it would be a joint authorship.
To be clear, the contributions in a joint authorship do not have to be equal, if you can show that the contributions are “inseparable or interdependent” all authors will have a stake in the joint authorship, regardless of the relative contribution.
But what does it mean to have a joint authorship? Well, there are several rights and obligations one has to consider.
Rights and Obligations In a Joint Authorship
If you conclude that a work is a joint authorship, there are several rights and duties co-authors need to be aware of that are unique to such cases. They include:
- Equal Ownership of the Work: Each author has an equal share of the work, regardless of their contribution. This interest is undivided, meaning everyone owns a portion of everyone else’s work in addition to the portion of theirs.
- Right to Grant Non-Exclusive Licenses: Any author can, without their co-author’s approval, enter into a non-exclusive license so long as they share the profits with the other authors. Exclusive licenses, however, require the approval of all authors.
- Right to Assign Ownership: Each author can assign, bequeath or otherwise transfer their share in the ownership of the work as they see fit.
- Equal Right to Attribution: Each author has an equal right to be attributed for the work upon publications.
In short, what a joint authorship does is take the copyright in a work and carve it up evenly among all of the authors, whether it is 2 or 200. While it seems simple enough, this can have very dire consequences for those who aren’t prepared for all that joint authorship entails.
The Pitfalls of Joint Authorship
You’re probably already seeing many of the ways that a joint authorship can go sour, the biggest problem being the first two elements listed above. Since every author, regardless of contribution, owns an equal share in the work and can enter into non-exclusive licenses without co-author permission, it’s very easy for authors to pull a work in as many directions as they can without communicating or working with their fellow authors.
Disagreements in joint authorships are rampant. Authors often disapprove of deals signed by their partners and, in other situations, authors are upset that they are given an equal share for doing an unequal amount of work.
The way to avoid this is to have a good contract in place BEFORE creating a work of joint authorship. After all, the guidelines in the law only apply to when there is no agreement in place. Authors of a work, when embarking on a quest to create a work of joint authorship, can sign any agreements they want.
This can include having one author sign away all of his or her rights to the work, usually in exchange for an upfront payment, or removing the ability for one or all parties to enter into license agreements without the other authors.
However, writing these kinds of contracts is a highly case-specific task and one that should only be undertaken by an attorney experienced in such matters.
This means that, sadly, for most works a contract simply isn’t worthwhile. If you aren’t planning on creating a new book for publication or a new CD for sale, going through these hoops just isn’t worthwhile. This is why works of joint authorship are usually best avoided if at all possible.
Otherwise, you are stuck with a joint authorship system that may make it too easy for conflict to erupt among the creators and create complexities in licensing and selling a work.
To be clear, there are other ways to work with others and not create a work of joint authorship, work for hire being one of the more common and the topic of next week’s post.
But in the end, if two or more people create a work together and don’t have some kind of prior agreement, these are the rules that govern the created work, whether they are fair or not.
It pays to be smart about who you work with and under what circumstances. Failure to do so could see you giving away more rights to your work than you intended or feel is fair.
So it’s important to be aware of the rules of joint authorship and, if you can avoid it all, do so.
Have a question about the law and freelance writing? Either leave a comment below or contact me directly if you wish to keep the information private. This column will be determined largely by your suggestions and questions so let me know what you want to know about.
I am not an attorney and nothing in this article should be taken as legal advice.