Joint Authorship of Copyright Works
From Advocatespedia, The Law Encyclopedia
At the heart of the copyright system is the author of a creative work. Copyright is the legal protection afforded to creators of original works like writings, paintings, or musical compositions. Copyright arises when a creative idea is fixed in a tangible medium, such as recording a melody or sketching a painting.The Berne Convention, establishing a union to protect literary and artistic works, recognizes by virtue of Article 1 that the rights being protected through copyright law are the rights of authors. Authors actually are the first beneficiaries of rights under the law and provide a reference point as to how long rights over the work should exist. Authorship in copyright today is a legal artefact allowing a market for creative works to function and at the same time is also a reversion to early versions of romantic authorship that allows autonomous individuality on the part of the author Copyright law refers to the creators of copyrightable works as "authors," even if their creation is a work of art or music rather than literature. When two or more people create a copyrightable work together, they share the copyright as joint authors. Joint authors legally own an undivided share of the copyright, with each joint author owning an equal proportion of the copyright. Each joint author can transfer their ownership portion of the copyright and sell or grant the non-exclusive right to use the copyrightable work to others, without permission from the other joint author. Joint authors can agree to a disproportionate division of the copyright ownership, but this agreement must be in writing and signed.
With regard to what constitutes a work of joint authorship, the question has arisen most frequently in cases concerning musical works where the music was composed by one author and the lyrics were written by another. Traditionally, where the composer and lyricist worked together for the purpose of creating the music and lyrics in combination, the resulting combination was held to be a single joint work of the two authors." Even though the two authors performed their separate labours apart from each other and at different times, as long as they intended to have the music and lyrics combined into one whole, combination was held to be a single joint work.
The author in copyright history, especially before the Statute of Anne , had been regarded as a separate entity from the printer or publisher of a work. The distinguishable rights of a book owner over the manuscript as a physical object made out of ink and parchment from the rights of an author over the text itself indicated an early separation between the person who created the work and the person who invested in publishing it. In fact, early forms of copyright practiced by the book trade showed more of an economic interest by the book sellers in the physical embodiment of a text rather than the text itself . Printing privileges that were given to printers in the year 1400s allowed books to be printed in large quantities and distributed. Indeed one of the most notable features of statute of Anne, 1710 was that it recognized authors as first owners of the literary property they created. This concept has been repeated in United Kingdom’s Copyright Act of 1988declares that the author of a work is the first owner of copyright.
“The Copyright Act provides for joint authorship when a work is prepared by more than one author "with the intention that their contributions be merged into inseparable or interdependent parts of a unitary whole”. If joint authorship exists, the authors of the joint work will be recognized as the co-owners of the copyright in that work.A joint work is a work prepared by two or more individuals, with the intention that their separate contributions be merged into a single work. A joint author can also be an organization or a corporation under the definition of "work made for hire" A person who has merely contributed ideas without actually documenting those ideas generally cannot be considered an author.Authors usually own the work jointly and equally, unless the authors make an agreement otherwise. “Each joint author has the right to exercise any or all of the exclusive rights inherent in the joint work. Each author may:
• Grant third parties permission to use the work on a nonexclusive basis without the consent of other joint authors with them.
• Transfer his or her entire ownership interest to another person without the other joint authors' consent.
• Update the work for own purpose.”
Additionally, each joint author must account to the other joint authors for any profits received from licensing the joint work. The "joint authorship" doctrine involves a "sharing" of rights, although hopefully, especially if the publisher is a co-author, it is a deliberate sharing of rights and not an inadvertent loss of the publisher's complete ownership of rights in the work of authorship.
The Copyright Act provides for joint authorship when a work is prepared by more than one author "with the intention that their contributions be merged into inseparable or interdependent parts of a unitary whole". If joint authorship exists, the authors of the "joint work" will be recognized as the co-owners of the copyright in that work.
There exists a complicated relation between a publisher and an author. There exists a relationship between the two as publisher is the author of a work created as a work made for hire.
“Major issue which needs to be dealt in this joint authorship of any copyright work is that the Joint authors are not entitled to bring a lawsuit for copyright infringement against their fellow joint authors. Absent a written, signed agreement to the contrary, two joint authors each own a 50 per cent share of the copyright in their joint work, and are entitled to 50 percent of the proceeds if either one licenses the work in exchange for payment, even if one author only contributed a small amount of ideas or resources for the final product. Conflicts may arise when joint authors have different opinions as to what constitutes an appropriate licensing or income agreement for the shared, copyrighted work. The ability of each joint author to grant only non-exclusive licenses of the copyrighted work may diminish the income potential of a single, exclusive license, but all joint authors must be in complete agreement in order to grant an exclusive license”
Under World Common Law
The copyright on works subject to U.S. copyright law and created after January 1, 1978 remains in effect for the life of the author plus 70 years. For works of joint authorship created under the same circumstances, the copyright lasts for 70 years beyond the death of the last living joint author. Copyright ownership passes to the copyright holder's heirs for the duration of the copyright protection. Depending on the relative lifespans of the joint authors, this can create a substantial extension of the copyright protection period to the estates of the joint authors who die first. All over the worldwide there are certain rights and duties of a co-author which are mentioned below:-
• 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
• Each co-author will own an equal ownership share in the work. This will occur even if one of the co-authors has contributed a greater quantity of the work than the other co-authors.
• Each co-author will own an "undivided" interest in the entire work.
• Any co-author, without the permission of their fellow co-authors, may grant non-exclusive rights to the work to third parties.
• Each co-author has a duty to account to the other co-authors for any profits obtained from the exploitation of the work.
• A co-author has the right to assign his/her ownership share in the work to a third party or to bequeath his/her ownership share to his/her heirs.
• Each co-author will be entitled to equal authorship credit for the work upon its publication.
Section 10(1) of the Copyright, Designs and Patents Act 1988 (the ‘CDPA’) states:
“In this part a ‘work of joint authorship’ means a work produced by the collaboration of two or more authors in which the contribution of each author is not distinct from that of the other author or authors.”
Thus, there must be collaboration between two or more authors; the contribution of each author must not be distinct from that of the other author/authors; and contribution must be sufficient for an individual to qualify as a joint author,
Case law Summaries
NajmaHeptulla v. Orient Longman Ltd. and Ors. In this case, the plaintiff is the legal heir of the author of the book India Wins Freedom. The defendant is the publisher of said book. The defendant entered into an agreement with one Prof. Humayun Kabir to make contents of the book known to the public. The plaintiff obtained an injunction restraining defendants from breaking seals of covers of the complete book India Wins Freedom and from making its contents known to the public. According to the preface to the said book written by Kabir, Maulana Azad used to describe his experiences in Urdu, on the basis of which a draft in English would be prepared by Kabir. The court held that active and close intellectual collaboration and cooperation between Maulana Azad implied that Kabir is a joint author of the book with Maulana Azad. Hence, the defendants were allowed to break the seals of the covers of the complete book India Wins Freedom and make its contents known to the public.
In Childress v. Taylor, actress Clarice Taylor asked playwright Alice Childress to write a play about legendary comedienne Jackie "Moms" Mabley. While writing, Childress accepted Taylor's assistance. Taylor mainly contributed ideas regarding the portrayal of characters in the play and also provided research on the life of "Moms" Mabley. On finalization of the draft, Childress rejected that it was owned equally by her and Taylor and registered the same in her name. Later, Taylor took a copy of the play and produced it at another theatre without Childress' permission. As a response to a suit for infringement by Childress, Taylor claimed that she was a joint author of the script and hence had equal rights in it. The Court while determining this issue, looked at whether the both the participants intended to combine their works into a unitary whole. Additionally, the court checked whether the parties 'intended to be joint authors' in the work. The court held that Taylor was not a joint author of the script due to lack of contribution of sufficient expression. It observed that no evidence was shown to establish Taylor's role as anything more than giving advice and ideas.