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Copyright and Collaboration: The Good, the Bad and the Ugly
January 27, 2020

By Susan L. Ford

These days, written collaboration is easier than ever and we are seeing real-time digital collaboration among writing teams more and more often. Collaboration also occurs in music, theatre, filmmaking, and other creative pursuits. Frequent collaborators include illustrators, set designers, composers, costume designers, writers, and musicians. When your team consists of co-authors of creative works such as books, plays, screenplays, and other content written collaboratively, it is wise to establish the expectations and intent of all authors in a written contract before you get to work. While doing so can feel a little awkward at first, it will avoid the stress and uncertainty—not to mention the disputes—that come with “winging it.”

Without a written agreement, when two or more people collaborate on a creative project the resulting work will likely be considered a joint work under U.S. copyright law. This is because the legal definition of a joint work, which is “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,” presumes each collaborator co-owns the copyright and is entitled to share equally in the profits (e.g., royalties). While joint ownership is not necessarily a bad thing, it’s good to understand what that means going into the project.  

Under the Copyright Act, each collaborator can license the nonexclusive rights to the work to a third party so long as they share the profits from doing so with the other collaborators. For example, one member of the collaboration team could decide to give a low-cost license to his Aunt Louise to display the work without her co-authors’ permission. However, absent a contract to the contrary, that team member will need to divide up any royalties she receives with the others.

On the flip side, any collaborator can prevent the other collaborator(s) from licensing or assigning exclusive rights in the work to a third party. So, if one collaborator decides they’re going to sell the rights to a publisher in exchange for an exclusive license, the other collaborators can take legal action to prevent them from doing so. For this reason (and many others), publishers often require that joint authors have a formal written agreement in place before they’ll work with the author team.

An example of how these things play out in practice is the case of Severe Records vs. Rich, 658 F.3d 571. A songwriter and producer (who also happens to be a lawyer) collaborated with a singer to record a song. Things went so well that they decided to write and record another song. Unfortunately, the relationship then fell apart and the two went their own ways. The singer signed with another management and recording company, assigning all of her rights to both the music and the sound recording in doing so. The songwriter and producer decided he didn’t want her to be able to exploit her rights and sued the singer for copyright infringement. Unfortunately, he didn’t understand the definition of a joint work, which is what the songs were. The court dismissed the copyright infringement claim because there was no basis for it in law – they both owned the copyright and, therefore, neither could infringe on the rights of the other, although they do need to account for profits to one another. The appellate court affirmed that decision.  

Before you launch into your next big venture with creative collaborators, be sure to document how things will work when you’re done. If you don’t, you may end up in a long and expensive fight like Severe Records vs. Rich. For example, it important to document:
 
  • When must the project be completed by and what are the team’s internal deadlines to make that happen?
  • What happens if one of the collaborators quits, becomes disabled, or dies before the work is completed? Will that collaborator or their heirs receive credit or compensation?
  • Who will own the copyright and in what percentages is copyright shared?
  • How will key business and artistic issues be decided?
  • How will credit be given and in what order?
  • How will expenses be shared?
  • How will profits be shared?
  • How will disputes be resolved?
There are numerous collaboration agreement templates online, but ideally they should be tailored to your specific situation in consultation with a copyright lawyer. Additionally, the Copyright Clearance Center offers a “Collaboration License” as an amendment to an organization's Annual Copyright License and/or Multinational Copyright License (http://go.copyright.com/collaborationlicenseportal1). This license “allows project team members from two licensed organizations to share articles, research, and other published content” when working with one another for the purpose of the collaboration. 

The creative process should be a fun and cooperative one, and the best way to avoid disputes is to enter into a well-drafted collaboration agreement before the work begins.

Susan Ford is an intellectual property attorney and business litigator at Jordan Ramis PC. Contact her at susan.ford@jordanramis.com or (503) 598-7070.
   
Thank you for your interest in this blog. The information contained in this blog is for the general interest of our readers and should not be regarded as legal advice. If you have questions, or to obtain more information on this topic, please contact Susan Ford.
 



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