The greatest cause of copyright disputes is the end of a partnership. Roughly analogous to the disruption to family and finances wrought by a divorce, the end of a creative partnerships finds the art itself “choosing sides.”
100 years ago the issue of joint authorship was less important as most copyrighted works were books, compositions, and paintings, all respectively considered the achievements of solitary individuals. Not so after the 20th Century, which introduced film & television, video games,comic books, and sound recordings.
A joint work is created when two or more persons intend to create a unified work of art. The intent is very easy to spot for works with defined roles. The writer, penciler, inker, colorist roles of comic books are a great example, each role is defined and none of them are intended to stand-alone. The intent can travel over time and space, however. Imagine a person writes song lyrics, but no music. Years later, the lyricist gives the work to a guitarist, who years after that collaborates with a pianist to set the words to music. Who is the author? All three, as each intended for his or her contribution to become part of a joint work.
Any creative contribution can qualify for joint authorship. Generally, technical roles like sound engineer or editor do not qualify. Many a sound engineer or editor may take issue with what I’ve written, as those roles involve creative input. True, but authorship (like all laws) involves drawing an artificial line somewhere.
Rights of the joint authors. Copyright is actually a bundle of rights, giving authors the exclusive right make reproductions or derivative works, distribute, perform, display, or transmit a work. In the United States, each joint author enjoys all rights over the entire work. No matter how small the contribution, if someone qualifies as an author, he or she may use the work how they please or enter into an agreement with a third-party to give away some or all of those rights (Not so in many other countries, which require all authors agree to transfer ownership of a work). Consider the example of a music duo like the Broken Bells (Danger Mouse and James Mercer).
Mercer is free to sign an agreement with Coca-Cola to use one of Broken Bells songs in an ad campaign. He doesn’t need Danger Mouse’s approval, but he would have to split the profits. However, Danger Mouse can still give Pepsi permission to use the same song in a rival campaign, again splitting the profits with Mercer.
Careful contracting can alleviate problems like this. A contract may exist between Mercer and Danger Mouse stating that neither may use or transfer rights to the music without the consent of the other. Coke may also have an out-clause if a work is licensed to a competitor.
Work for hire is a form of contract that transfers the rights of authorship as the creative work is being made. In the film setting, Everyone from the director on down has in their employment agreements a clause stating that is work for hire and all creative contributions are the sole property of the film company. Video game designers, session musicians, and most comic book artists all operate under similar terms.
How do I protect myself if I’m a part of a creative collaboration? It depends on the field you’re in and how “corporate” you want to be. Much of the time, you’ll be in situations where work-for-hire is the norm. Even then, read your contract carefully to ensure you understand what you’re signing away. Recently, the maker of the Bratz doll got in trouble with Barbie-maker Mattel when it was alleged that the inventor of Bratz had been working for Mattel when he conceived of Bratz and that all his doll ideas belonged to Mattel.
If you’re not work-for-hire, you have freedom to create agreements doing whatever your conscience and pocketbook can bear. Talk to peers about what they’ve done. Talk to an attorney about your options. Just remember that the law assumes you want to share control over the joint work with every other author on the project. If nothing else, choose your partners carefully, what they do will have a profound impact on your art.
Spousal “Authorship” in Washington and California. In Washington state, where I practice law, and California, where much of US entertainment is created, the law is that all property, including intellectual property, is considered shared property when it is acquired or created during marriage. During the divorce of Larry Wachowski, his wife claimed that the idea for the Matrix had been “thought up” during the marriage, meaning she was entitled to half of Larry’s profits from the series. Prenuptial agreements attempt to resolve issues of ownership before they arise. I don’t practice family law, so I’m not going to touch this one, I only mean to let people know it’s out there.
I wanted to end on a happy note, encouraging people to keep creating joint works of art. I recently finished Muramasa for the Nintendo Wii. The game was a fine example of the legal complexities and artistic beauties of a joint authorship. Based on centuries old kabuki theatre plots (legally in the public domain), drawn and programmed by in-house artists (work for hire) and scored by freelance musicians (who retained the distribution rights to the music separate from the game), the final product combined all the contributions into one experience. The youtube clip (only the first two minutes are necessary to see what I’m talking about) demonstrates what I loved about the game: The artwork and music fuse to create atmosphere while the controls and music engage the player in the intensity of 1 vs. 100. None of the respective artists could have achieved this effect on their own. I became an arts & entertainment lawyer because I wanted to contribute my legal skills to making deals like this happen so the public may continue to enjoy the fruits of joint labors.