Co-authors, Collaboration, and Joint Authorship – Part I of All That

In this post, I’m going to go over what defaults the law provides for co-authors, detail why those defaults are not at all what you want, and recommend what you should do about it (i.e. enter into a collaboration agreement). I’ll leave the law on what constitutes joint authorship for a later post.

Federal copyright law provides for co-ownership of copyright rights when a work is jointly authored. The statute chooses to define “joint works” rather than “joint authors,” but courts typically discuss it in terms of joint authors and joint authorship. Co-ownership and the relative rights stemming from it are pretty much borrowed from the law of physical property, i.e. what happens when two people co-own a piece of land.

Co-ownership entails each co-owner having rights to the undivided whole. With land, that means that a co-owner has rights to possess and use the whole tract of land, even though their ownership percentage might only be 50%. Each of the owners has the rights to possess the entire piece of land. Thus, the law does not say that each of two co-owners gets to possess only half the land.

How can two people possess the entirety of a parcel of land at the same time? Well, they can’t. If one wants to sow the land and the other wants to build condominiums, they can’t both do what they want even though they each have the right to do as they want. When this sort of conflict arises, the law has several different types of partition that are available to the co-owners. Essentially, partition divides the ownership into separate pieces, and the co-owners no longer co-own anything. Each might own half the land (partition by kind), each might get half the proceeds from the sale of the land (partition by sale), or one might pay the other when the resulting parcels of land are of unequal value (owelty).

When these principles of concurrent ownership are imported into the area of intellectual property, we only get the ownership side and not the partition side. Because a work of authorship (that thing protected by copyright) is intangible, the law does not treat it as being, or even needing to be, divisible.

So, joint authors (aka co-authors) have an undivided interest in the copyright. That has some pretty big consequences.

It means that each joint author can do whatever they want to with the copyright rights. Each co-author can license it to whomever they want – without needing to seek the approval of the other.

Aside from meaning that one author may be stuck with the decision of a co-author, that fact has a second consequence. Because either joint author can license it to whomever they want, neither joint author can grant exclusive rights, what most publishers want, without the agreement of the other joint author. All co-authors would have to enter into a license or transfer in order to convey exclusive rights. If one doesn’t agree, then exclusive rights cannot be granted.

A co-author who unilaterally licenses a work does have to account to the other co-author for any profits realized from that transfer. But that lack of control and the reduced commercial possibilities that can stem from a lack of agreement remain – when you are stuck with the default rules provided by copyright law.

So, your co-author decides to post your novel online for anyone to download for free, and you’d rather offer it for sale? Fine, you can offer it for sale, but your co-author can leave it up for free. And if you do make any money off the sales, you have to give half the profit to your co-author (who put it up for free download). Those are the default settings of joint authorship.

What if one co-author wants to self-publish the novel while the other wants to go with a traditional publisher (assuming it was written on spec)? What about the sale of subsidiary rights? What about editorial decisions?

Copyright law provides co-authors with no resolution to these problems. Thanks for nothing, copyright law.

The solution, therefore, is to use a contract to build something beyond the default rules.

Writers who are going to work together to produce a story or novel should draft (or have a lawyer draft) and enter into a collaboration agreement. As a general matter, the purpose of contracts is to decide what happens when it all goes down the crapper – before it goes down the crapper.

Two co-authors resolving a dispute over whether to use “said” or “asked”
(Or maybe an image from the Clang Kickstarter)
See: http://www.kickstarter.com/projects/260688528/clang
On a related note, when is that game going to happen?!?!

As potential co-authors, think about all the things that could wrong and all the things about which you might disagree , and then decide how you would want to resolve those issues – now, beforehand, while you both are still on speaking terms (or even alive – death of one of the co-authors mid-project is something you might want to consider accounting for). Note that this means going beyond merely all of the “how would we make decisions” type of issues, but also thinking about “what if something bad happens” type of issues. For example, what if one of the co-authors stumbles into a George R.R. Martin novel and they are unable to finish the project on account of being dead along with everyone else?

I’m not going to attempt an even partial list here of what should go into such an agreement. My purpose is to point out the desirability of having such an agreement. And hopefully I’ve accomplished that.