Creating Copyright Agreements for Co-Creators

Creating a simple, written agreement can prevent major conflicts over copyright ownership and other related issues.

We usually envision creativity as coming from a single person: a talented author, a transformative painter, or a world-class architect. But in reality, many creative works are the work of multiple people, maybe even a whole team.

Consider a movie, for example. Someone must write the script; someone else must manage the video cameras; someone must impose the music and sound; and someone else must edit the footage. All of these people are necessary to the final creative product that appears on the screen.

U.S. copyright law, broadly speaking, gives exclusive rights to the creator of an original work. Under 17 U.S.C. § 106 of the Copyright Act of 1976—the federal law governing copyright in the United Statesā —the holder of a copyright has the exclusive (sole) ability to reproduce, perform, and distribute the work, among other rights.

So, if two or more people jointly create a work, how do such partnerships intersect with U.S. copyright law?

Possibility for Joint Copyright Ownership

Copyright law contemplates a situation in which two or more individuals working together create a single work. Under 17 U.S.C. § 101, a joint work is one "prepared by two or more authors with the intention that their contributions be merged into inseparable or interdependent parts of a unitary whole."

The creators of such a work are considered joint copyright holders. The U.S. Copyright Office, the federal agency charged with copyright registration, will list both creators on the copyright. Each has an equal and independent ability to register the copyright, and to enforce the copyright in federal court. In other words, if a third party is wrongfully infringing on the copyright by making unauthorized reproductions, any of the joint copyright holders can sue.

A common example of a joint work would be a book that is cowritten by multiple authors. Absent any agreement to the contrary, both authors would be considered equal and independent holders of the copyright—that is, each one would be entitled to copy, sell, and distribute the book, among all the other exclusive rights afforded to copyright holders. One author could not sue the other for exercising those rights.

Importance of Clarity in Co-Creation

Co-creators often work closely together, and it is not uncommon that they share a "real-life" relationship—that is, they are often colleagues or close friends. That close relationship is often why the creative partnership works so well. The parties know one another and understand their complementary skills.

However, that close relationship is also why co-creators sometimes fail to raise the many awkward aspects of any joint enterprise. Who will do what portion of the work? Who will be paid what revenue? How will costs be split between the parties? Such topics can be taboo in friendships, but are critically important to a successful partnership.

The best time to discuss the relationship between and among co-creators is at the beginning of the creative relationship. Before launching into actual creation, particularly of a time-intensive or complicated work (an album, a book, a movie), it behooves all co-creators to have a detailed discussion about the intellectual property ownership rights in whatever will be created.

Such a conversation might be awkward, but can save significant time and friction over the long run.

Drafting a Joint Copyright Ownership Agreement

A simple written agreement at the outset of the relationship can help to prevent major conflicts. It offers a full and fair opportunity for both sides to discuss critical issues (and sometimes with their respective attorneys).

What should be contained in a joint copyright agreement? While the list is long, here are some important topics to consider:

  • Royalties: How will money be allocated between you and your co-creator? Are all revenues split 50/50, or in some other way (for example, dependent upon investment, time, or work in the future on licensing)?
  • Costs: How will costs be allocated between you and your co-creator? If you are making a movie, for instance, who will rent the cameras and hire the actors? Will those costs be split 50/50, or in some other way (for example, dependent upon each of your resources or based on a revenue agreement)?
  • Control: After the work is created, who has the ability to decide how it's used? For example, if your band makes a song, must decisions to license it be unanimous, or may one of the members of the band make that decision alone? What decisions must be made unanimously, and what decisions do not require unanimity?
  • Sale of rights: What if one co-creator eventually wants to sell his or her rights in the work? Must the other co-creators approve the potential purchaser, and/or do the other co-creators have the right of first refusal to purchase those rights?
  • Credits: How will the co-creators be credited when the work is publicly performed and displayed? Will all names be listed, and if so, in what order and with what titles? Will this same listing remain in effect even if one co-creator sells or licenses his or her rights?

Depending on the specific situation and the nature of your creative work, there might be many other considerations to include in your joint copyright ownership agreement. But these should serve as a starting point to begin your thought process. Typically, the more detailed your initial conversations, the smoother your relationship with your co-creators will be.

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