It's not an uncommon situation for two creative professionals to work together on a project. Writers do this all the time. For example, in the world of scriptwriting, one look at the credits of most movies shows that screenplays often have joint authors.
However, it's important for all involved in a creative collaboration to understand how copyright law applies to the final, co-created work, especially if there's been an unequal division of labor on the finished product.
For example, it's easy to assume that if one party did 75 percent of the work while the other contributed 25 percent, the copyright over the work would be divided among the two on a 75/25 basis. However, this is not the case if the work involved falls under the copyright definition of "joint work."
Definition of joint work
Joint work is defined in the U.S. Copyright Act 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." This means that if you and your co-writers work on a project with the intention that the work each of you contributes to the project is intended to be merged into a whole, you have all created a joint work. This is important because if the co-created work falls within this definition, then the copyright law relating to all joint works also applies to your situation, unless the parties have an agreement stating otherwise.
For example, Wendy and Peter decide to work on a romantic-comedy screenplay that is a fictionalized account of a real-life journey they took through Neverland. They each plan to write alternating scenes, to merge all the scenes into a screenplay. Their screenplay, once completed, would fit into the definition of joint work.
This determination would hold even if Peter ends up working on only a third of the scenes. Their work falling within the parameters of the "joint work" section of the Copyright Act also has important repercussions when it comes to the copyright over the final screenplay.
Copyright ownership in a joint work
When two creators produce a joint work as defined by the Copyright Act, the legislation states specifically that they are co-owners of the work's copyright. This co-ownership is where the situation can get challenging because each co-owner is independently entitled to exercise their copyright over the work in whatever way they choose, without getting the consent of the other co-owners.
Copyright gives an owner the right to license a work, transfer or assign their interest in the work, and pursue infringement claims related to the work.
So a co-owner of a joint-work copyright can take any of these actions independent of the other co-owners' preferences, as long as they account to the others for any profits they make from doing so. This can lead a conflict among co-creators.
Let's say that Wendy and Peter's screenplay attracts the attention of Horrorscapes Films, a movie company specializing in acquiring rights to works and producing them as horror movies. Horrorscapes, impressed with the script's horror potentials, makes a six-figure offer for the rights to produce the screenplay.
Wendy, who wants to remain true to the screenplay's romantic-comedy nature, is not interested in the offer. On the other hand, Peter is in rather desperate need of funds to pay a particularly large debt. Under copyright law, unless they have an agreement in place that requires each of them to consent to an offer for their work, Peter can sell the screenplay rights to Horroscapes without Wendy's permission, as long as he then gives her half of the payment he receives.
Joint copyright ownership agreement
While the above rules apply to a joint work under copyright law, they are default rules. This means they come into play only if there is no agreement governing the copyright over the co-creators' joint work.
A properly drafted agreement can specify how copyright over a joint work is owned and what each individual co-creator is entitled to do with the copyright, including whether consent of the other co-creators is required.
So, if Wendy and Peter had entered into a screenplay collaboration agreement before they even started on the screenplay outline, Wendy would have been able to reject Horrorscapes Films's offer, and Peter would have had to wait to pay his bills.
An understanding of joint work pertaining to copyright is important for creative professionals contemplating a collaboration on a single work. By signing a collaboration agreement that addresses these issues before they begin working together, collaborative partners may avoid many common conflicts.
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