Comment by J. David Yarbrough, Jr.
Singers Sheryl Crow and Tom Petty decide to go into the studio to create a new song; Sheryl will write the lyrics and Tom will create the musical track. They are so excited about working together that they do not even consider what will happen to the song after it is created. They work together for several weeks, but Tom contributes substantially less to the song than Sheryl because he is suffering from a creative block. Sheryl writes the bulk of the music and the lyrics. When the song is eventually released, with Sheryl billed as the artist, it is bought by people all over the world, becoming a huge commercial success. Meanwhile, Sheryl and Tom have a disastrous argument and falling-out, and Sheryl calls her lawyer, telling him to register secretly the song's copyright under her name only, without telling Tom. Her lawyer does so, and immediately informs Tom that Sheryl is claiming all copyright ownership in the song, which will deny him any profits from the song. Tom is justifiably angry, as he contributed to the song's success. What rights does Tom have under the copyright law to make Sheryl account to him for a share of the profits? As the two have not contractually agreed to divide the profits, how will copyright law divide the profits? More importantly, aside from how copyright law will divide the profits, what is the most just way of dividing the profits? Considering that this type of scenario occurs with some frequency among artists, entertainers, and writers, copyright lawyers should understand the issues and consequences involved in this type of situation.
The United States Constitution provides Congress with the power to “promote the Progress of Science . . . by securing for limited Times to Authors . . . the exclusive Right to their respective Writings and Discoveries.” Congress deemed copyright protection the best method of achieving this goal, and the Copyright Act of 1976 (1976 Act) is the most recent statutory mechanism in furtherance of that goal. The 1976 Act grants copyright protection to “original works of authorship,” but does not, perhaps in an act of congressional humor, define the term “author.” While determining which subject matter is protected under the 1976 Act can pose difficult questions, often an even more difficult question is: To whom, exactly, does the 1976 Act grant protection?
Congress's failure to define “author” has caused much debate among the courts and between commentators. The dispute is not as pronounced in the area of sole authorship, but instead arises most often when one author is the registered copyright owner and another person claims joint authorship of the registered work. When authors intend to merge “their contributions . . . into inseparable or interdependent parts of a unitary whole,” a joint work has been created by the two authors.
Joint works raise particularly difficult questions for courts. Courts must first determine whether the party alleging joint authorship of the copyrighted work is actually an “author” for purposes of copyright protection under section 102(a), which defines what is generally covered by copyright. In addition, the court must answer the even more difficult question of whether the authors intended their individual contributions to create a joint work.
The Supreme Court's decision in Community for Creative Non-Violence (CCNV) v. Reid has increased the significance of joint author status because the decision severely restricts the ability of an employer to claim work-for-hire status, unless it can prove that there was a contractual agreement with the author or that the author was clearly an employee. As a result, joint authorship has become a popularly litigated issue in copyright law, and courts have imposed restrictive requirements that an author must meet to be classified as a joint author. These restrictive requirements arise from courts' reluctance to grant joint author status where one author has been clearly dominant, even though another author has made a substantial or critical contribution to the work.
A joint work determination results in an initial co-ownership of the copyright in the work. This co-ownership is treated as an undivided half-interest or a tenancy in common. As one court stated, “crediting a minor contributor with joint-authorship status confers substantially greater benefits than the relative amount of his or her effort,” and, thus, courts should be wary of conferring that status. Co-owners of copyrights may use the copyrighted work in any way they desire without the permission of the other co-owners. The only duty owed by one co-owner to another is to account for any profits. Accordingly, courts are afraid of granting joint author status to false claimants, thereby depriving hard-working sole authors of their rights to the profits from their work. Most importantly, courts are wary of the consequence of joint authorship: co-ownership of the copyright. As a result, courts reluctantly acknowledge joint authors in situations in which there has been a dominant author and a nondominant author.
This Comment focuses on the problems with the current regime that grants co-ownership of a copyright to joint authors under section 201(a) of the 1976 Act and proposes a better default rule for the ownership of copyright by joint authors. Part II outlines the definition of the term “author” in the setting of sole authorship, discussing in particular CCNV and Burrow-Giles Lithographic Co. v. Sarony, the only two cases in which the Supreme Court has defined the term “author” in the copyright context. Part III analyzes recent joint authorship cases and the requirements that they have imposed, as well as the consequences of joint authorship. Part IV proposes a new and integrated system for determining and dividing copyright ownership, based on apportioning interest according to contribution. This new regime will build on the current copyright law as outlined in Parts II and III, but will provide a more just result designed to relax the judicial uneasiness with joint authorship. Part V provides concluding thoughts on the possible implementation of the proposed new regime, and how courts may handle the joint work doctrine in the future.
About the Author
J. David Yarbrough, Jr. J.D. candidate 2002, Tulane Law School; B.A. 1999, University of North Carolina.
Citation
76 Tul. L. Rev. 493 (2001)