chapter7

Chapter 7

Collaborative Copyright and Registration

This work is licensed under a Creative Commons Attribution-Noncommercial-Share Alike 3.0 United States License.

In today�s networked world, collective efforts are swiftly becoming the norm. As communications becomes faster and easier, many artists and companies are changing their models and strategy to incorporate collaborative efforts from around the globe. This, in turn, creates the dilemma of how to proportion the resulting intellectual property rights. Unfortunately, existing copyright law can differ from the natural intuitions of creative individuals. This discrepancy might come back to haunt you down the road if you don�t figure things out at the start.

Since we are in America, copyrights can be sliced in almost any way imaginable. All you need is a written contract stating how everyone would like to proceed. But before you sign away your work, it is important to know what you are signing away � and what you may or may not be getting in return.

This chapter covers the existing copyright rules for collaborative works. We will discuss how copyright treats collaborative works, such as a jointly authored work, and how the "work made for hire" doctrine functions. Having a better understanding from the beginning will significantly lower the probability of sharp headaches and heavy legal bills later on. By understanding how and where copyright attaches, you can better utilize contractual provisions to construct the agreement to your advantage.

Part I: Collaborative Efforts and Copyright Ownership

Copyright law starts by giving the copyright to the author or authors (with the exceptions of works made for hire, which we will discuss below). Copyright law defines a 'joint work' 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."

If you and your co-authors plan on a joint project, you will want to document your intentions. Write them down and have everyone involved sign the paper. There are two benefits to this. First, you have a solid piece of evidence in case something goes wrong. Second, it ensures that everyone is on the same page � this is probably the more important reason. Projects morph and change over time. If you make sure everyone knows, in writing, what the plans are you will have less angry collaborators in the future.

At the same time, joint authors will only be so if they are both authors. There is an additional requirement that all contribute some creative portion to the work. While there are some exceptions, for the most part courts require each party�s contribution to be copyrightable by itself.

Collective works (i.e. a collection of paintings in a book) operate a little differently. Copyright law recognizes a copyright in each separate contribution (which is given to the respective author) and also a copyright in the collective work as a whole (given to the author who creates the collective work). The author holding the collective work copyright has restrictions on what he can do with the underlying contributions. He can exercise �only the privilege of reproducing and distributing the contribution as part of that particular collective work, any revision of that collective work, and any later collective work in the same series.�

Why does it matter?

If the work is jointly authored, all the authors receive a divided interest in the whole copyright. What this means is that each author can use (and license) the copyright independently. If one author wants to grant a non-exclusive license to a company, she is free to do so � even if the other authors oppose the idea. The only things off limits are exclusive licenses or assignments, since these would curtail the rights of the remaining authors.

However, all authors are required to account (or share) profits with the rest of the authors. The law requires all joint authors to split all the profits evenly with each other, regardless of the quantity or quality of their respective contributions or who brought the money in.

In other words, even if you contributed 99%, and your partner only 1%, if you are joint authors she will get half the profits. You can see how this could cause problems down the road. If you want to divide the spoils in a different manner, you need to have a written agreement stating so. Take care of this before the project starts.

William Patry writes an excellent blog and has briefly spoken on the problems of joint authorship. While his entry here is brief, it is helpful. I highly recommend viewing his other posts for some well written insights into copyright law.

Part II: Work for Hire

To explain the work for hire doctrine, I am going to refer you to Lloyd J. Jassin. He wrote an article about the work for hire doctrine which I recommend. He provides useful tips which blend copyright ownership issues with tax, employment, and infringement issues.

As a side note, I'd like to expand a little on his second point � the �employee within the scope of his or her employment.� Jassin mentions the factors that determine whether an artist is an employee or not. I'd add that employee benefits and tax treatment are given the greatest weight. If you are giving out W-2 forms, for example, courts are more likely to find an employee/employer relationship. That being said, I repeat Jassin�s advice about getting everything in writing as soon as possible. Since copyrights are hyper-assignable, a written contract will probably prevail and get you what you originally bargained for.

Part III: Registering your Copyright

In chapter 1, we discussed how copyright attaches to your work without the need to register. However, there are several reasons why registering your copyright is worth the time and money. In this chapter we will explain what those advantages are and how you register your copyright.

Advantages

Without further ado, here are some reasons why you want to register your copyright:

1. To sue. You will need to register your work before you can actually sue someone for copyright infringement.
2. Money. If you register your work before infringement occurs (or within 3 months of publication), you are eligible to receive statutory damages, which we covered in chapter 5. If your work is not registered, you are limited to your actual damages.
3. Leverage in Letters. If you are in the cease and desist letter phase of litigation, having your work registered makes a much more impressive case. Also, as the copyright offic states, �Registration establishes a public record of the copyright claim" and may stop someone from infringing in the first place.
4. Stopping Importation. If you register your copyright, then you (along with the U. S. Customs Service) can stop anyone from importing infringing copies. This can be a powerful remedy.
5. Proving Your Case in Court. Registering your work within five years of publication means that your opponent will have to disprove what you�ve said in your registration. It is like getting a bye in the first round of a tournament while your rival has to play the number 2 seed!

You can register anytime during the term of the copyright in that work Lloyd L. Rich wrote an article in which he discusses the advantages of registering your copyright, which gives an accurate representation of the matter. At the same time, a little extra discussion on the registration forms can save a lot of headache down the road. So later on we�ll glance at the forms to talk about some specific trouble spots.

How to Register

Like any government agency, the Copyright Office requires paperwork. Luckily, the forms are pretty straight forward and can be found on their website. For the most part, the instructions they provide are pretty good. I�ll only stop to highlight a couple of issues that might still be confusing.

First, there are several different forms corresponding to different types of works and a brief explanation of the categories. If you need more help, clicking on an icon will send you to a sub-page providing more examples and instruction.

For the most part, the forms are pretty easy. Give your work a title, state your contact info, etc. But there are a couple of issues I�d like to discuss. First, in the �author� portion (space 2), the work for hire doctrine appears again. If you need a refresher, pop back to the top of the chapter before filling out this part.

Space 6 can be very important. In it you must state what parts of your work were not authored by you. Here you are indicating the boundaries of your copyright. If you have incorporated any material from someone else, you need to identify it on the form. This does not mean you�ve done anything wrong (indeed, almost all creative work relies to some degree on existing art) it just means that you do not claim a copyright in that material.

When creating a work, it can be helpful to keep track of where you found your sources, information, or inspiration. Besides filling out registration forms, having a document list of your sources will be very important evidence if you ever have to fight a copyright infringement claim.

After all the forms are finished, you�ll send them in a long with a small fee and a non-refundable deposit of your work. The Copyright Office has started testing their on-line application form. One friend of mine tried it and registered his work is far less time than the normal paper method. Plus, it is cheaper!