Two Heads Better? The Legal Side of Collaboration
By John Paul Benitez, Attorney at Law
Collaborating with another artist may generate a masterpiece, and it may also produce a mess. When more than one artist is an "author" of a work, the normal expectations about ownership and copyright get skewed. If two or more people create works, intending to put them together in a single cohesive work, the resulting collaborative piece is a "joint work."
Share and Share Alike
Unlike works with a single author, in a joint work, the co-authors have equal, individual rights to control and exploit the work, particularly in four areas: Ownership, Control, Accounting and Transfers.
Ownership:
No matter the size of the contribution, the joint work’s author owns an undivided interest in the entire work and all its elements. Similar to a joint bank account, each party to the account can withdraw funds, even beyond amounts he or she deposited; likewise no single author owns any more or less than the other.
Control:
Traditionally, an author has the exclusive right to use, reproduce or make new works inspired by the original work. An author of a joint work shares that control with other joint authors. As such, one joint author can exploit the joint work without the other authors’ permissions. One joint author can exploit any individual element of the joint work without the other authors’ permissions — even, with limitation, if the non-consenting author contributed the element in question. And, joint authors cannot sue each other for infringement. For instance, imagine a painter contributes a painting and a photographer contributes a photo to a collage. Without consulting the painter, the photographer may license the collage for a calendar and may permit the calendar company to sublicense the collage for a mouse pad.
There are some limits to this control. The law will not permit a joint author to "destroy" the work. However, it may be difficult to prove any particular use or license has lowered the value of the work so much that the work has been "destroyed."
Accounting:
Joint authors are accountable to each other for any profits generated from the joint work. All such profits must be disclosed and divided equally among all joint authors.
Transfers:
A joint author may sell his or her ownership to a third party. The buyer will "step into the shoes" of the original joint author, as if the transferee is the joint author with respect to all of the rights discussed above. In our example about the painter’s and photographer’s collage, the photographer could transfer his rights to a cereal company, without the painter’s permission. The company can use the image on the box of one of its products. The company will have to pay the painter for whatever value it gains by using the image on its cereal boxes, but the painter might not be able to prevent the use. Moreover, unlike accounting for licenses, the sale of the ownership interest is not subject to the division of profits. Our rogue photographer can sell his interest in the collage to the cereal company and keep the sale price completely to himself.
How is a Joint Work Created?
Many collaborations may result in joint authorship. Consider each of these questions together to determine if they suggest a contributor be treated as an author. 1) Can two or more people claim "authorship"?; 2) Did those authors "intend" their input be a portion of a greater work?; and 3) Are the inputs "inseparable" or "interdependent" parts?
1) Authorship.
Becoming a joint work "author" itself depends on several elements. Each of these considerations, balancing against each other, will tell the story of authorship.
Does the nature of the contribution suggest authorship? This requires that something more than a de minimus input be made — more than a word or a line. Some dispute exists as to how much "more" than the bare minimum is required. It seems clear that the contributor’s input must be greater than mere labor or mere financing. Confusion arises when a collaborator’s input itself (without the whole of the joint work) would not be eligible for copyright protection. This is primarily an issue for collaborators who take on a consultant’s role, rather than a production role.
For example, one person’s song lyric suggestions made to a fully-crafted, rough draft did not create joint-authorship. However, two years prior a person’s stock character ideas made during the entire creation cycle did create joint authorship of a comic book. The split decisions amplify the importance of intention between creators to collaborate on a work — that intention may be construed by the moment in the life of the work when the alleged co-actor made the contribution.
Second, does the contributing party possess artistic control of the project? For example, a translator on a film may make significant contributions during production. He may even write full passages in the screenplay. However, if the translator does not possess the ability to control whether or not those contributions are incorporated into the film, it is unlikely his input alone instills him with the rights of a joint work’s author.
Third, is there evidence of how authorship is claimed? Such evidence can be found beyond a collaboration agreement. The credits may denote a single author. Arrangements with galleries or theaters, or references in magazines may only contemplate a single author. Even the tradition of certain relationships (writer/editor, playwright/actress) may imply that only a single author is intended.
Finally, is the contributing artist an indispensable party? The appeal of the work would significantly turn on the contributor’s involvement. For instance, absent agreements, Annie Leibovitz would have a much greater claim for joint authorship of a photograph where she contributed ideas during a design meeting than the intern who took notes during the meeting that were used in organizing the shoot.
2) Intention.
Authors of a joint work must intend, at the time of creating their contributions or beforehand, that their input will become part of a greater whole. The artists do not need to know each other; they don’t need to work closely together; they don’t even need to know the specifics of the future, greater project. All that is required is an intention, at the time an element is created, that the element will be used in the future, combined with other contributions, to create another single work.
The classic example is that of the lyricist. He may write lyrics with the clear understanding that the lyrics will later be transformed into a jingle. At the time of the writing, he may not know who the composer will be, when it will be made or what style of music will be used. Regardless, the intention to create a joint work is enough.
The importance of the "intention" element is best understood by considering the alternative: What if the writer composes words without the intention that they be later set to music? Recall also that an author of a joint work has the right to control future uses of the work and all its component elements.
In this instance, the writer alone is the owner. If a musician comes along who wishes to set the words to music, and the writer agrees to let him, the musician will be an author of the joint work comprised of the music and lyrics. However, the musician will not have any rights to control the lyrics alone. The lyrics were created prior to the intention to create the unified work. The writer, on the other hand, as a joint author of the new song, does have the right to control the music alone. The music was created with the intention that it be combined with the lyrics.
3) Merged Elements.
For purposes of law in the United States, this distinction is largely irrelevant. It simply contemplates the two ways individual elements can be intended to form a joint work. "Inseparable" contemplates the type of work where the component elements cannot be removed from the joint work and stand alone. For instance, one cannot remove the brushstrokes of three individual painters from the joint work of their singular mural. "Interdependent" parts can so be removed. For instance, the lyrics and the music to a song can stand apart without the other. However, in the song they are interdependent and create the new work.
Bottom Line
When artists decide to work together, they risk surrendering control. To avoid this result, collaboration agreements are highly recommended from the outset. Specifically, they should speak to:
- Control & Consents.
- Transfers.
- Defining your contribution.
- Work made for hire.
If you do not intend an assistant to be a co-author, explore the idea of having "work made for hire" agreements in place and get the assistant’s written assignment of this contribution. This can serve as the kind of objective evidence discussed above which would weigh against deeming the work a joint work altogether. If you want joint author credit, but you have more of a consultant’s role, you will want to avoid the grey area in the law discussed above concerning authorship. It is best to obtain a collaboration agreement, push for co-author credit on all contracts and media, or provide for a record of clear evidence that your efforts are integral to the project and that all parties intended a joint work be produced. Again, limit the ability to transfer interests by requiring unanimous collaborator consent. Set limits to the types of future uses fellow collaborators can explore. At the very least, require that any further use by any collaborator is subject to the consent of the joint authors.
The time and effort it may take to arrive at a solid collaboration agreement may thwart the momentum that has led into a collaboration arrangement. The savings (in dollars and stress) of being clear about the division of rights and responsibilities, on the other hand, will be worth the brief departure from inspiration.
