Memo: Joint Authorship | jdickins | June 28, 2012

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Memo: Joint Authorship

The Copyright Act says that “the authors of a joint work are co-owners of copyright in the work,” §201, and that “a ‘joint work’ 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.” §101. The Childress case addresses the question: how does a work become a ‘joint work’ (entitling the authors to co-ownership of the copyright)? Because the court concludes that the work in question is not a joint work, it does not have to go on to consider what happens if the work were a ‘joint work’ and the nature of that co- ownership interest.

The “co-ownership” referred to in §201 has been treated as a kind of “tenancy in common” with respect to the copyright [though not, of course, with respect to ownership of any of the tangible embodiments of the work, see §202]. That is, each co-owner is deemed to own the entire indivisible whole of the copyright, subject to the other co-owners’ similar ownership interest.

There’s a great deal of law about the nature of this co-ownership interest, none of which we will be looking at in this course. It can be summarized roughly as follows:

    1. A co-owner of copyright can exercise all of the rights of the copyright owner as set forth in §106 of the Copyright Act; he/she can reproduce the work in copies, create derivative works from the copyrighted work, distribute copies of the work to the public, etc.
      2. A co-owner of copyright may authorize others to exercise those rights. If “John Lennon” and “Paul McCartney” are co-owners of the copyright in the musical work “I Am The Walrus,” either one of them can authorize (via license) a third party to reproduce the work, to create derivative works from the work, to publicly perform the work, etc., without the necessity of the third party obtaining permission from the other co-owner.
        3. Neither Lennon nor McCartney (nor any other co-owner), however, can grant an exclusive license to a third party on his/her own (i.e., without the consent of the other co-owner(s)). Thus, Lennon can grant David Post a non- exclusive license to make and distribute a recording of “I Am The Walrus,” and to publicly perform “I Am The Walrus,” and David Post will not be infringing the copyright if he does so. But Lennon can’t grant an exclusive license to do any of those things, because McCartney, the co-owner of the copyright, has the same rights as Lennon to authorize 3d parties; as a result, Lennon can’t promise me that the rights he is granting to me are exclusive, because McCartney may have already granted permission to others to exercise those rights.
          4. A co-owner of copyright can sue for infringement of the copyright without the necessity of joining the other co-owners.
            5. And finally, all co-owners are entitled to a share (usually pro rata, although courts can make exceptions in special cases) of all proceeds generated by any such exploitation of the work. So if I’ve paid Lennon $2000 for the license he granted to me, Lennon will have to share that, probably on a 50/50 basis, with McCartney.
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June 24, 2013

Professor David Post

2012-06-27

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