Co-author, Gerald M. Levine
Claiming joint ownership of copyright signifies a collaboration beyond making suggestions or performing editorial services. This is clear in the definition of the relationship in the Copyright Act of 1976, Sec. 101. A “joint work” is “work prepared by two or more authors with the intention that their contributions be merged into inseparable or interdependent parts of the unitary whole.” Embedded here are several difficult concepts. “Intention” from whose perspective? And, what contributions qualify for joint authorship? The questions are important because “authors of a joint work are co-owners of copyright in the work” and “[a] joint owner of a copyright … cannot be liable to a co-owner for copyright infringement because a copyright owner cannot infringe his own copyright.” Strauss v. Hearst Corp., No. 85 Civ. 10017, 1988 WL 18932, at 5 (S.D.N.Y. Feb. 19, 1988). “Intention” is not presumed by a party declaring a right, but an inference drawn from the factual circumstances in each individual case.
For another person to enjoy the benefits of copyright ownership in a work, it is not sufficient that he merely assist the author in creating the work. If it is not intended for the “contributions to be merged into inseparable or independent parts of the unitary whole” it is not a “joint work.” The Second Circuit offered as an example the work of an editor: “a writer frequently works with an editor who makes numerous useful revisions to the first draft, some of which will consist of additions of copyrightable expression… yet very few editors and even fewer writers would expect the editor to be accorded the status of joint author, enjoying an undivided half interest in the copyright in the published work.” Childress v. Taylor, 945 F.2d 500, 507 (2nd Cir. 2001).
In Childress the plaintiff playwright sued for copyright infringement to which the defendant defended on the theory that she was a joint author. This was based on her contributions, which consisted of ideas and research. “Many people” (explained the Court) “can be said to ‘jointly labor’ toward ‘a common design’ who could not plausibly be considered co-authors.” This brings up a question of what exactly is meant by the statutory phrase that “their contributions be merged into inseparable or interdependent part of the unitary whole.” The Court explained that
Parts of a unitary whole are “inseparable” when they have little or no independent meaning standing alone. That would often be true of a work of written text, such as the play, that is the subject of the pending litigation. By contrast, parts of a unitary whole are “interdependent” when they have some meaning standing alone but achieve their primary significance because of their combined effect, as in the case of the words and music of a song.
Contributions are scaled. In the Childress case, plaintiff was asked to write a play. The defendant, an actress who portrayed the subject of the play on stage provided research material, “[b]ut there was no evidence that these aspects of [defendant’s] role ever evolved into more than the helpful advice that might come from the case, the directors, or the producers of any play. A playwright does not so easily acquire a co-author.”
However, the “fully intend” prong does not mean that a collaborator is denied protection under the copyright laws simply because the other authors refuse to recognize her as a co-author. The “intent test requires a ‘nuanced inquiry into the factual indicia of ownership and authorship’ such as ‘how a collaborator regarded herself in relation to the work in terms of billing and credit, decision making, and the right to enter into contracts’.” BSN Medical, Inc. v. Parker Medical Associates LLC., 3:09cv15 (W.D.N.Carolina Nov. 17, 2011), citing Thomson v. Larson, 417 F.3d 195, 201 (2d Cir. 1998). If the contribution is less than co-authorship, but more in the nature of offering suggestions and ideas then the parties are “free to bargain for an arrangement that will be recognized as a matter of both copyright and contract law … [while] equal sharing of rights should be reserved for relationships in which all participants fully intend to be joint authors.” Id., 945 F.2d at 508.