The Joint Authorship Doctrine
The law of copyright provides that an author is the person who creates a work of authorship and is, at least the first instance, the sole owner of the work. Even though the author may initially have sole ownership of the work there are many methods by which the publisher may obtain ownership rights in the author's creative efforts. Two of the most frequently used are through the "work made for hire" doctrine - the publisher will own the copyright and "all" rights in the creative work-, and by an "assignment" of rights from the author to the publisher - the author specifically grants "all or some" of the rights in the work to the publisher.
When more than one person is involved in the authorship process the identity of the authors, and the "rights and duties" of the authors may not be so obvious. The "joint authorship" doctrine involves a "sharing" of rights, although hopefully, especially if the publisher is a co-author, it is a deliberate sharing of rights and not an inadvertent loss of the publisher's complete ownership of rights in the work of authorship.
The Copyright Act provides for joint authorship when a work is prepared by more than one author "with the intention that their contributions be merged into inseparable or interdependent parts of a unitary whole". If joint authorship exists, the authors of the "joint work" will be recognized as the co-owners of the copyright in that work.
The Importance of Joint Authorship to the Publisher
Co-authorship and collaboration are commonplace in the publishing industry. Examples of co-authorship and collaboration may include a co-writer, an illustrator, a ghostwriter, a book packager, or a work that includes copyrighted materials owned by another author or artist. When co-authorship or collaboration occurs a number of critical questions and issues arise. These include: Who is the author(s) of the work in the form in which the work will be published? Who is the owner(s) of the copyright in the work? Who makes the decision on when, where and how to publish the work? Who receives payment or royalties for the work? The most appropriate time to resolve these matters is in a written agreement or agreements prior to commencement of work on the project.
Right about now you are probably asking yourself the following question: "Why should the joint authorship doctrine be important to a publisher when its only impact is on authors?" You are correct in recognizing that the joint authorship doctrine only applies to authors, however, the reason this doctrine is important to publishers is that the publisher is the author of a work created as a work made for hire. Therefore, the publisher will be effected by the joint authorship doctrine if the publisher is not the "sole" author of a work created as a work made for hire.
One situation that may arise, where the publisher may not be the sole author of the work, is when the work is commissioned by the publisher as a work made for hire, but the publisher fails to satisfy the requirements of the work made for hire doctrine. If this occurs, unless the publisher has obtained, in a written agreement between the publisher and author, a grant of rights - including copyright ownership - to the work, the rights in the work would be owned exclusively by the author. The publisher, in order to prevent the loss of all its rights in the work, would have to prove that the work qualifies as a joint work and that the publisher was a co-author of the work. The publisher could prove that it was a co-author if the publisher acted as a collaborator in the work. One example of such a collaboration would be when an employee of the publisher or a freelancer hired by the publisher added copyrightable materials to the work made for hire; such as illustrations prepared by a staff artist within the scope of the artist's employment or by a freelance artist who prepared the artwork as a work made for hire that satisfied the requirements of the Copyright Act or by copyright assignment by the freelance artist to the publisher.
Another situation where joint authorship could arise is if the work is created in its entirety by employees of the publisher, but where a portion of the work was not created within the scope of an employee's job; an example of this could be where an editor was asked to write materials for inclusion in the work, and/or where the work was created outside the employee's normal work day and possibly at a location other than the place of employment, such as in the evening and/or on weekends at home. Under this scenario the employee could claim that he/she was a co-author of the work. If the employee is successful in this attempt to acquire joint authorship the employee would be recognized as a co-author of the work.
The Rights and Duties of a Co-Author
If the work qualifies under the law of copyright as a work of joint authorship the co-authors or collaborators may allocate the rights and duties of the work of authorship among themselves. However, since no formal agreement is required between the co-authors or collaborators a legal relationship of joint authorship may occur even without the intent of the respective authors to create a work of joint authorship. Therefore, if no joint authorship agreement has been formalized it will be presumed that the following principles shall apply.
- Each co-author will own an equal ownership share in the work. This will occur even if one of the co-authors has contributed a greater quantity of the work than the other co-authors.
- Each co-author will own an "undivided" interest in the entire work. This means that if the publishing project consists of illustrations and text that the artist and the writer will each own fifty percent of the entire work, i.e., the art and the text.
- Any co-author, without the permission of their fellow co-authors, may grant non-exclusive rights to the work to third parties. However, a co-author may only grant exclusive rights to the work to third parties if the co-author obtains the prior consent of the other co-authors.
- Each co-author has a duty to account to the other co-authors for any profits obtained from the exploitation of the work.
- A co-author has the right to assign his/her ownership share in the work to a third party or to bequeath his/her ownership share to his/her heirs.
- Each co-author will be entitled to equal authorship credit for the work upon its publication.
Publisher's Guidelines that may Prevent the Fragmentation of Ownership Rights
Following these guidelines should help a publisher retain full ownership rights in creative works of authorship.
- Make certain you have a written agreement with all of your employees who create employment-related works and other works that may be published by the publisher.
- Make certain you have a written "work made for hire" agreement with all freelancers and independent contractors who create works that are meant to qualify as a "work made for hire." Make sure you fulfill all the requirements of the work made for hire doctrine.
- Include an "assignment" of rights clause in the work made for hire agreement that will serve as a back-up just in case the work fails to satisfy the work made for hire requirements of the Copyright Act.
- If the work fails to qualify as a work made for hire, exercise, if possible, the defense of "joint authorship" to prevent the loss of "all" your rights in the work.
This article is not legal advice. You should consult an attorney if you have legal questions that relate to specific publishing issues and projects.