Back to Basics: Joint authorship and creative collaboration
Creative collaboration is central to the entertainment industry. When two or more people create a work together, questions of ownership can become more complex, and if those questions are not properly addressed from the outset, they can become the source of serious and costly dispute.
What is joint authorship?
The UK Copyright, Designs and Patents Act 1988 (CDPA) provides that a 'work of joint authorship' is 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 or others. Two conditions must therefore both be satisfied: there must be genuine collaboration in the creation of the work; and the respective contributions must not be separable or distinct from one another.
That second element is critically important. If two writers each contribute identifiable and separately existing sections of a screenplay (for example, one writes acts one and two, and the other writes act three), those contributions may be regarded as distinct, giving rise not to a single jointly authored work but to separate copyrights in each identifiable contribution. The key question is whether the contributions are genuinely merged and inseparable. This is a question of fact to be determined in each case.
What counts as a contribution to authorship?
Not every contribution to a collaborative project will be sufficient to constitute joint authorship, however significant that contribution may be in practical terms. The courts have made clear that the contribution must be one of authorship, meaning that it must involve the exercise of sufficient creative skill and judgment in the actual expression of the work. Merely contributing ideas, making editorial comments or suggestions, or providing instructions to a writer does not make someone a joint author.
A person who contributes suggestions subsequently expressed by another author in their own words may not qualify as a joint author. What is required is a contribution to the expression of the work itself, not merely to the ideas or concepts underlying it. This is consistent with the broader principle of copyright law that ideas, as such, are not protected: only the expression of those ideas attracts copyright. The director who conceives the overall vision for a film, or the producer who commissions a script and provides detailed creative notes, does not thereby become a co-author of the screenplay.
The practical consequences of joint authorship
Where two or more persons are joint authors of a work, they hold the copyright jointly, as tenants in common, with equal undivided shares, unless otherwise agreed. This gives rise to a number of significant practical consequences.
First, any assignment of copyright in the jointly authored work requires the consent of all co-authors. No single co-author can transfer the whole of the copyright without the others' agreement.
Second, the grant of an exclusive licence to a third party requires the consent of all co-owners. A single co-owner cannot unilaterally grant exclusive exploitation rights; to do so would potentially infringe the rights of the others. This is a point frequently overlooked in practice and can give rise to difficult contractual and infringement issues.
Third, each co-owner is generally entitled to exploit the work personally — without needing the consent of the other co-owners — though they are obliged to account to the co-owners for any profits they derive from doing so. The distinction between personal exploitation and the granting of third-party licences is therefore significant.
Fourth, the duration of copyright in a work of joint authorship is determined by reference to the life of the last surviving joint author, with copyright subsisting for a further seventy years thereafter.
The importance of a collaboration agreement
Given the consequences of joint ownership, it is critically important that any collaborative creative arrangement is clearly documented from the outset. A well-drafted collaboration agreement will address, among other things: the respective ownership shares of each collaborator, and whether those shares are equal or weighted by contribution; the attribution and credits to which each is entitled; the decision-making process for licensing, exploitation, and further development of the work; what happens if one collaborator withdraws or the collaboration breaks down; and how revenues are to be divided and accounted for.
Without such an agreement, the default rules of the CDPA will apply — and those default rules may not reflect the parties' actual intentions. In certain circumstances, a single co-owner can effectively block the entire commercial exploitation of a work. For that reason alone, the importance of addressing these issues contractually, before creative work begins, cannot be overstated.
Finally…
Creators, collaboration can be enormously rewarding — but it must be properly structured. The time to agree the legal framework is before the work begins, not after a dispute has arisen.
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