Co-Writing and Joint Works of Authorship
While not universally revered, for many songwriters, co-writing is a way of life. It’s an activity that’s part creative, part social, and often involves a bit of politicking. Many writers believe that establishing good writing relationships can not only improve their creative output, but that it can also help one get established and build life-changing friendships. Whether done by formal writing appointment or informal jam session, the importance of having a basic understanding of copyright law regarding joint works of authorship cannot be overstated.
What is a “Joint Work of Authorship”?
The Copyright Act defines a “joint work” as one that is “prepared by two or more authors with the intention that their contributions be merged into inseparable or interdependent parts of a unitary whole.” Although on its face this sentence may appear simple enough, a close analysis illustrates that it is anything but.
To begin, how do two or more people “prepare” a joint work? Certainly it includes concurrent collaboration on a work (e.g. a formal writing session), but it also includes situations where separate works are created with each author intending his or her work to be merged with another’s at a later time. Think of a composer and a lyricist working independently.
Also, what does it take to be considered an “author” in the context of joint works? Well, that depends on who you ask. Some courts have held that to be considered a co-author your contribution must be independently copyrightable – meaning that it has to be sufficiently original to warrant copyright protection standing alone. Other courts, and some academics, assert that a co-author’s contribution need not be independently copyrightable so long as it is more than a de minimis contribution. In the case of a lyricist and a composer, it’s usually not a question. But what about a friend who offers a single lyric change, or suggests a certain melody or chord change? Is that enough of a contribution for authorship? It depends. Some courts would find that the contribution didn’t possess the “modicum of creativity” necessary to be independently copyrightable, and consequently the contributor would not be a joint author. Other courts would not preclude joint authorship simply because, standing alone, that lyric change, chord change, or melody was not copyrightable. Assuming there was more than a de minimis contribution these courts would look straight to the intent of the creators without regard to the independent copyrightability of each contribution.
Irrespective of the independent copyrightability debate, it’s clear that each author’s contribution doesn’t have to be equal to result in a joint work. One author could contribute 10% and the other 90%. As long as the contributors intended to merge their works into a unitary whole, they will be considered joint authors. In a sense, this “intention” to merge contributions into interdependent parts of a unitary whole is the cornerstone of joint authorship.
Although subjective, intent can be gleaned in a number of ways including, a contract between the collaborators, the circumstances under which the collaboration took place, the nature of the works merged, and whether credit was given. Once it is established that the collaborators intended their contributions to be merged into a unitary whole, the actual merger of these contributions will create a joint work of authorship. And this result has significant effects.
Ownership and Administration of Joint Works
Absent an agreement to the contrary, Joint Authors have equal ownership of the joint work created. I’ve occasionally had clients mistakenly believe that law dictates 50% to the writer(s) of the lyrics and 50% to the writer(s) of the actual music. This may be a logical way to split the copyright of a song, but it’s by no means a rule, and it’s definitely not the law. It makes no difference if one co-writer was responsible for 90% of the song and another only contributed 10%. If there isn’t an agreement stating otherwise, each co-writer shares equally in the entire work. Co-writers in Nashville almost universally adopt the custom of an equal split between everyone in the room. So if you start “counting lines” in Nashville, be aware that you probably won’t have many writing appointments in your future.
Likewise, absent an agreement to the contrary, a joint author cannot prevent another joint author from making use of the work so long as (i) it’s a non-exclusive use and (ii) the licensing author accounts to the other joint author for a proportional share of the profits. That means all licensing fees and royalties must be split equally.
If you don’t have a publisher that takes care of the “business affairs” part of co-writing for you (e.g., split sheets, PRO registration, etc.), then here are some basic elements of a collaboration agreement:
- Title of the Work
- Name, percentage of ownership, and PRO affiliation of each writer
- Any administrative restrictions
- Dated signature of each writer