Under the US copyright law, although
ideas alone are not protectable, an author or creator owns a copyright in his or
her work the moment the author’s expression of the idea is 'fixed in a tangible
medium' (i.e., when the expression of an idea is written down or recorded in
some manner). Once created, a copyright extends for the life of the author plus
70 years, and in the case of collaborators on a copyright it extends for the
life of the last surviving collaborator plus 70 years.
This article will focus on the
collaboration between and among creators of books, stories, theatrical plays
and television shows. The essence of collaboration is working together to
create a single work regardless of how or what each party contributes. Collaborators
may work together in the same room at the same time, or not. The creative
contribution of each co-author may be equal in quality or quantity, or not. Both
authors may work together on the total work, or each might write separate
chapters or scenes (or with a book or audio/visual production one might write
words or dialogue while the other is an artist doing graphics and illustrations,
etc.) The long history of collaboration
has shown that there are endless combinations. Co-authors do not need to have a
written agreement concerning their joint work, but it is probably a good idea to
do so given the myriad issues that can arise and become a problem under such
circumstances.
Co-authors can divide copyright ownership
in whatever proportion they determine and that ownership concerns both rights
(ownership and control) and revenues (income generated from the work). In the
absence of a written agreement, under current case law concerning both copyright
and partnership law, two or more collaborators are generally deemed to share equally
on a pro-rata basis. This might be so even if it is clear that the contributions
of the authors were not equal since the Courts generally prefer not to make
decisions about the value of each author’s contribution to a copyright and
simply divide it by the number of authors (and we probably prefer that Courts
not be making decisions about whether the writing in one scene or a particular
chapter has more or less value than that of another, etc.). Therefore, without
a written agreement two authors would be deemed to own the song fifty-fifty, three
writers one-third each, etc.
Beyond the issue of just dividing
the income, there arises the issue of copyright ownership and control. In the
absence of a written collaboration agreement or other contract stating
otherwise, each author retains control over its respective share of the
copyright. In this way each writer retains some control over what happens with
the work, the scope of any uses, contracts or licenses and how much is charged.
Under US
copyright law, co-authorship is akin to partnership and each joint copyright
owner can exploit the work and also grant non-exclusive licenses to third
parties, subject to the duty to account to the co-authors for any money that is
generated.
Another important question that can
arise is what happens if two or more authors start to collaborate on a work and
then one leaves before the work is completed. This can raise complex legal issues
concerning whether the contribution of the departing author is copyrightable
and whether the parties had a clear intent to work together to create an
indivisible copyrighted work. There have been cases that have addressed this
situation with differing outcomes depending on different circumstances. In one
case, one party had the idea for the play and engaged another party to do more
of the actual writing. There was no written agreement, and the parties had a
dispute about the direction of the project. The idea party departed and the
writing party continued on to complete and produce the work. Later, the
departing party sued claiming authorship and co-ownership of the copyright in
the work. In this particular case, the
Court determined that, since ideas alone are not protectable under copyright
law, only the expression of the idea was subject to copyright, therefore, only
the writing party had ownership. The departing party had proposed the original
idea for the project and had made suggestions along the way but the
contributions were insufficient to create copyrightable material. Therefore,
since there was no written agreement to indicate otherwise, the Court
determined that only the writing party had an ownership interest in the copyright
to the work that the parties had started together.
All of these issues can be addressed
in a written collaboration agreement. There are endless variations depending on
the circumstances. A collaboration agreement can be as simple as a pie chart
drawing made on a napkin at the dinner after the writing session, or as
complicated as a writer’s publishing company or TV/film production company
dictates that it be.
At the end of the day, if you
believe in yourself and your talents, give yourself the benefit of the doubt and invest in good legal representation - all the successful creators do. Your
lawyer can create a fair collaboration agreement for you to use or 'translate' the documentation presented to you and explain its terms and then help
negotiate more favorable terms for you as appropriate. My advice: never sign
anything - other than an autograph - without having your lawyer review it
first.
Wallace Collins is an entertainment lawyer
and intellectual property attorney. He was a songwriter and recording artist for Epic Records before receiving his law degree from Fordham Law School .
T: (212) 661-3656; wallacecollins@gmail.com; www.wallacecollins.com
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