Copyrights - Joint Works

With A Little Help From My Friends

Great songs come from many places of inspiration, mixing and intertwining any number of themes and emotions. With the exception of the solo singer/songwriter, great songs come from bands with a story to tell. Often one band member will write lyrics about an event in his life, another musician will compose a guitar riff, and everyone else contributes with their own instruments or talents. Bit by bit, a song emerges from their individual efforts. You know the song becomes copyrighted as soon as it is written down and/or recorded, but who owns the copyright when everyone helps create it?

Luckily the U.S. Copyright laws anticipated this situation and defined a “joint work” as an artistic work created by two or more people with the intention that their independent contributions be merged into one complete work. The individual parts can be copyrighted by themselves, but they achieve the intended result when combined. The artists must also have the intent for their contributions to be merged together. This “joint work” rule works for music, drawings, and other artwork. Basically, this means when people work on something together, it is called a “joint work” and they all own a piece of the copyright for that work.

For example, the hypothetical St. Louis band Minotaur is releasing their debut album and need some artwork for the album cover. They contact a local artist, Jim, who agrees to create a design for the album; he asks his friend Jack to help. Jim and Jack split the responsibilities of the album artwork, and they create a masterpiece depicting Minotaur on stage. Most certainly, they both have created independent copyrighted works, with Jim drawing the band members and Jack drawing the adoring crowd. However, Jim and Jack had the necessary intent to join their works together to make a “joint work” for the album cover. Here is where things get tricky.

Jim and Jack own the copyright for the Minotaur album cover together as co-authors. Each of them has the full rights of a single author, i.e. they can perform, copy, reproduce, and license the artwork. The interesting part is neither needs the other co-authors permission to exercise his rights, so long as he properly accounts for any income received related to the work (more on this below). In this case, Jim can license the artwork to Minotaur without getting Jack’s permission. No matter how much Jack hates the band, he cannot stop them from using his joint work, since they got permission from his co-author Jim (assuming that Jim is giving Jack his fair share of the profits). Further complicating the situation, the copyright in a joint work is transferable, so one co-author can sell his part to a third party, or if he dies, the copyright passes to his heirs. Basically, this means you could be stuck in a situation where someone you do not know, and may not like, has permission to use your work. This situation also applies to music and is the reason a band can continue performing a song long after a member leaves the group.

The keys to using a joint work are that a fair accounting must be paid to all co-authors and the use is non-exclusive. In the example above, Jim must share any money he receives from Minotaur with Jack – 50/50. Further, he cannot completely give away the artwork, as he only owns a part of the joint work, which means he cannot give Minotaur an exclusive license to use the cover art, opening the door for Jack to license the exact same artwork to another band.

To ensure your rights are protected, you should have a written contract before creating something with another person. This includes writing a song, recording a track, or creating a logo. The agreement can address almost any issue, but at the very least should touch upon who owns the work, who has the right to use the copyrights associated with the work, who can license or transfer the work, and how profits from the work are divided. For bands, these are issues that can be included in your LLC Operating Agreement. Copyrights can be a very tricky area of the law, but are essential to protecting your rights in your work. Joint works and the rights of co-authors are more detailed and complicated this article can cover, but an entertainment attorney can assist you in navigating these issues and help you understand how to maximize the protections available to you and your art.

Matthew Nagel is an entertainment attorney at Wuestling & James in St. Louis, Missouri and an adjunct professor at Fontbonne University and Washington University School of Law. If you have questions, you can reach him at Nagel@wuestlingandjames.com.

* This article is primarily educational and does not purport to constitute legal advice. No attorney-client relationship is created between the author and any reader of this article. If you have legal concerns or questions be sure to consult with an attorney licensed to practice in your jurisdiction.