Thread by @MarkJKings

1. A little bit about joint authorship in copyright. Part 1 in a series. About 35 tweets, which is not enough to discuss the issues and nuances. As always, assume asterisks everywhere.

2. Joint authorship is where more than person owns the same copyrighted work.

3. Joint authors own an equal share of the work. Each joint author can market and license the work, subject to paying the others their share. The property term is that they are “tenants in common” 17 U.S.C. § 201

4. Under 17 U.S.C. § 101, a joint work is “prepared by two or more authors with the intention that their contributions be merged into separable or interdependent parts of a unitary whole.”

5. In other words, for it to be a joint work, the authors must intend for the contributions to be merged into one work.

6. Addressing whether any contributor is a joint author of a work, courts require that each contribution be independently copyrightable.

7. The “independently copyrightable” requirement would prevent an “idea” person from being a joint author.

8. For instance, If someone bounced ideas to a writer, but didn’t contribute any expression, that person might not be a joint author of a work.

9. That was one of the issues in the Friday the 13th lawsuit. The producers argued they were literally standing by the screenwriter giving him ideas. But the court held that doesn’t make them joint authors. ecf.ctd.uscourts.gov/cgi-bin/show_p…

10. A couple of well-known decisions in federal courts in New York and California courts illustrate how we determine joint authorship. The New York case is over the play Rent. The California case is over Spike Lee’s Malcolm X movie.

11. In the Rent Case, playwright Jonathan Larson hired Thomson, a “dramaturg” to help on the script. The agreements said Larson was the sole author. Thomson even worked on the script after Larson died, before its opening.

12. The 2nd Circuit relied on “objective” factors of co-authorship. That’s particularly helpful where there is a “dominant” author.

13. Here, Thomson did contribute some copyrightable material. But ultimately, the decision-making was Larson’s. Larson said the writer is “king.” He was the only one billed as the writer.

14. So all the objective evidence demonstrated that Thomson wasn’t a joint author. casemine.com/judgement/us/5…

15. In the Malcolm X case, Aalmuhammed v. Lee, Spike Lee hired Plaintiff as a “Islamic Technical Consultant”.

16. 9th Circuit articulated a standard that’s less rigid than Thomson. More subjective factors can be taken into account. In this case, however, the consultant wasn’t a joint author.

17. More recently, in the Chiluly case, the artist had assistants creating the painting in his style and technique. He Used those paintings for 3-D glass sculptures.

18. Applying 9th Circuit law, the court held assistant not a joint author: Chihuly had ultimate control, saving and discarding as he wanted. It wasn’t enough that the plaintiff made some independent artistic decisions.

19. There was no written agreement on ownership or authorship. Chihuly claimed sole authorship and displayed in his name only. Market appeal derived from Chihuly’s name and style only, not from plaintiff’s contributions. courtlistener.com/recap/gov.usco…

20. Can you, instead of being a joint author, have your own separable independent copyright contribution. That was rejected in Chihuly and Garcia v. Google, a lawsuit brought an actress in the racist “Innocence of Muslims” movie. leagle.com/decision/20047…

21. Thomson left that issue open. Ulloa, a S.D.N.Y. case brought by the woman who song the verse on Jay Z’s Izzo/HOVA, possibly leaves that issue open.

22. Even though an actor is typically not considered to be a joint author of a film, the band Smashing Pumpkins were found to be joint author of a music video. It’s an outlier and I don’t see it relied on much. law.justia.com/cases/federal/…

23. The court held “the primary purpose of his work: he was shooting a music video. The video's music was therefore the central component of the completed work.”

24. Similarly, the subject of a photograph is typically not considered to be a joint author of a photograph. There usually isn’t intent to create a unitary work. Photographers are the author.

25. A songwriter was held not to be a co-author of Trust Hurts. Lizzo didn’t credit the songwriter, who co-wrote a previous song with her. business.cch.com/ipld/Jefferson…

26. For sound recordings, the performers are on the recording are generally considered to be joint authors, although contracts do play a role.

27. That reflects the real world, where authorship and ownership are determined by written agreement.

28. In theory, however, contracts can designate but not authorship. It matters when parties litigate.

29. The language of these agreements need to be drafted with precision. Consider what happened in this dispute between the Everly Brothers over their songs.

30. Phil agreed to “transfer, release, assign and set over unto Don Everly all of his rights, interests and claim to” Cathy’s Clown, and to “transfer and release” to Don “every claim of every nature by him” of the song.

31. Court held that doesn’t necessarily mean Phil disclaimed authorship. Just credit for it.
courthousenews.com/wp-content/upl…

32. The Everly Brothers case was in the 6th Circuit. I don’t know if the 2nd and 9th would’ve held the same thing about that agreement.

33. Remember that language in the Everly Brothers decision. Are we going to see ghostwriters claiming rights, even if they agreed to forgo credit?

34. Authorship will matter with termination rights. Aside from a work for hire agreement*, authorship will control who’s entitled to the rights.

35. Because litigation over termination rights is relatively new, we can expect to see joint authorship addressed more often.

36. I realized there's just too much to discuss in one Twitter thread. In Part 2, I'll talk more about how parties contract authorship and copyright ownership, and how industry norms affect outcomes.