Two or more creators, Who owns the copyright?

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Law Office of Giselle Ayala Mateus

New York, NY

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Intellectual Property

When it comes to the creation of a work there can be one or more authors. In the case of several authors a work of authorship can be a joint work or a collective work.

Joint works and Collective works. What is the difference?

The Copyright Act of 1976 § 101 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.". Joint works are usually musical compositions, movies, academic thesis, research papers, among others.

Collective works, on the other hand, are defined as works "in which a number of contributions, constituting separate and independent works in themselves, are assembled". Examples of collective works are periodical issues, anthologies, multi-authors university publications or encyclopedias.

Joint and collective works are protected by copyright. For this reason, knowing whether a work is a joint work or a collective work is very important. It has practical consequences related to right to create derivative works, grant exclusive and nonexclusive licenses, transfer the rights, use a work as collateral, among others.

Who owns the copyright?

Copyright in joint works is equally owned by all creators. For instance, 17 U.S.C. § 106 states that the authors of a joint work of visual art are co-owners of the rights afforded by the Copyright Act. Here it is important to know that financial contributions may not create rights in a work of authorship. It is the creative contribution which does. However, the amount of the contribution made by each co-author is of no consequence because in the final product, those contributions cannot be distinguished.

Co-authors of joint works have a complete and undivided interest, i.e. they are granted all the exclusive rights typically afforded to a single copyright owner. That said, it is important to understand that joint authors have each the authority to grant non-exclusive licenses, but to grant exclusive licenses, consent of all joint authors is required by law. Now, as per derivative works, each joint author has also the right to create derivative works independently. Absent an express agreement, there is no joint ownership over derivative works. Finally, joint co-authors are equally entitled to share the profits derived from the exploitation of the joint work.

To create a collective work, the creator or collector must obtain authorization from the authors of the separate parts. As a result, copyright in a collective work, as whole, is owned by the collector, and each independent author is the owner of the copyright of its independent contribution. This means, that each author can give exclusive and nonexclusive licenses for the use of its independent work, exploit the work or create derivatives. Finally, it is a usual practice to agree that only the owner of the collective work as whole will receive profits derived from the exploitation of the collective work.

Final considerations

When it comes to works created by several authors, it is a good practice to have clear and comprehensive agreements, so that the exploitation of a work does not result impracticable or excessively costly. Assignment and licensing agreements are usually the solution to properly deal with works created by several authors.

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