According to the Copyright Act, the authors of a joint work jointly own the copyright in the work they create. A joint work is defined in the Copyright Act as “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.” Courts have interpreted this to mean that all putative joint authors must intend to make a joint work at the time of the creation of that work. If joint authorship exists, the authors of the “joint work” will be recognized as the co-owners of the copyright in that work. The contributions to a joint work do not need to be equal in quality or quantity, they only need to be copyrightable contributions and the parties must agree that the work is a joint work.
Standards for Copyright Protection
One does not become the author of a joint work merely by contributing ideas or supervision to a work. One does so by contributing material that meets the standards for copyright protection. In order to be considered a joint work, each author’s work must be independently copyrightable and inseparable from the whole.
No Consent Required to Use or License Work
When the copyright in a work is jointly owned, each joint owner can use or license the work in the United States without the consent of the other owner, provided that the use does not destroy the value of the work and the parties do not have an agreement requiring the consent of each owner for use or licensing. A joint owner who licenses a work must share any royalties he or she receives with the other owners.
Many foreign countries require that all joint owners consent to the grant of a license. Generally, joint ownership is not recommended because of the complications it adds to licensing worldwide rights. In addition, it is unclear what effect the filing of bankruptcy by one joint owner would have on co-owners.
The Rights and Duties of a Co-Author
If the work qualifies under the law of copyright as a work of joint authorship the co-authors or collaborators may allocate the rights and duties of the work of authorship among themselves. However, since no formal agreement is required between the co-authors or collaborators, a legal relationship of joint authorship may occur even without the intent of the respective authors to create a work of joint authorship.
If a joint work is formed, all joint authors are joint owners of the entire work (as opposed to each author only owning their own contribution.) This sets up important issues relating to how the work may be used and who may authorize any use. As a co-owner of the entire work, any joint author can:
- modify, reproduce, and distribute copies of the entire work
- grant a nonexclusive license to others to use the work without obtaining the consent of the other co-authors (but must share the profits generated from the license unless the authors agree otherwise) and
- transfer his or her interest to a third party (by written assignment) without the permission of the other owners.