Joint Copyright Ownership Versus Collective Work: Understanding the Difference

U.S. copyright law says that the "creator" of a work has certain exclusive rights, whether these works are novels, poems, movies, or something else. (See 17 U.S.C. § 106.) For example, the creator is legally allowed to reproduce the work, perform it, or display it. But what if no single person can be identified as the sole creator of the work, but was a joint effort between two or more people?

This is the case with so-called "joint works" and "collective works." Each of these categories is treated somewhat differently under the Copyright Act of 1976. If you collaborate with others in producing creative works, it is important for you (and your collaborators) to understand your respective intellectual property rights.

Joint Works

The U.S. Copyright Act defines a joint work as one "prepared by two or more authors with the intention that their contributions be merged into inseparable or interdependent parts of a unitary whole."

Basically, any intentional collaboration between two or more people who aim to combine their contributions into a unified work are considered joint copyright owners. A co-authored book or musical would be two of the most common examples of joint authorship resulting in a joint copyright.

According to 17 U.S.C. § 201(a), "authors of a joint work are co-owners of copyright in the work." In other words, each of them is separately entitled to all the exclusive rights typically afforded to a single copyright owner. Each author is, for example, able to copy, perform, and display the work without liability for infringement.

The U.S. Copyright Office considers joint copyright owners to have an equal right to register and enforce the copyright.

Joint creators can also decide, by contract, that only one of the creators will retain the copyright. For example, if two people collaborate on a book, but one pays the other $10,000 in exchange for an assignment of that person's copyright interest, such an arrangement is perfectly acceptable. Intellectual property, like tangible property, can be bought and sold.

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.

Collective Works

The Copyright Act defines a collective work as one, "in which a number of contributions, constituting separate and independent works in themselves, are assembled into a collective whole." It gives the examples of a periodical issue, an anthology, or an encyclopedia.

Basically, every one of these contributors gets his or her own copyright, which is different from the copyright for the entire volume or work.

As 17 U.S.C. § 201(c) puts it, copyright in each separate contribution to a collective work "is distinct from copyright in the collective work as a whole, and vests initially in the author of the contribution." Unless there is a specific written transfer of the copyright, the owner of the copyright in the collective work "is presumed to have acquired only the privilege of reproducing and distributing the [individual contributions] as part of that particular collective work… and any later collective work in the same series."

The key aspect of authorship in a collective work is the assembling of independent creative works (such as photographs, articles, and so on) into a unified new whole. For copyright purposes, that unified creation is its own protectable work. Unlike a joint work, where the contributions of many authors meld into a single creative work (such as a co-written book), the constituent elements of a collective work are easily separated (such as photographs in a collage). The copyright owner of those individual photos retains the rights to them individually, but the copyright owner of the collage controls the collective work.

As you've likely noticed, the creator of a joint work typically has far broader copyright protection than a contributor to a collective work. The former has an ownership interest in the full work, whereas the latter has only an ownership interest in his or her own piece of the larger collective pie.