Your copyright or mine? How to deal with joint ownership of copyright works

Have you ever worked on a commercial project with a friend, colleague or even a lover? When it was finished, were you clear on who owned the creative output? The reason I ask is that it’s often the case that this issue is a little fuzzy, particularly when it comes to copyright.

Now don’t get me wrong, copyright is brilliant, in most countries it subsists automatically, without the need for a laborious registration process and it protects some of the most creative works out there, like text, art and music. However, its ‘free and easy’ approach to existence does have some downsides, most notably; the lack of a clear certificate of ownership, and this means that there are often disputes regarding who the true owner is (think the “monkey selfie” saga). Indeed this gets particularly tricky in cases where more than one individual had a hand in producing the copyright work.

A dispute on this very issue has recently been decided, the case concerned the authorship of a screenplay for the film Florence Foster Jenkins – for those who missed it, the film starred Meryl Streep and Hugh Grant and it was based on the life of New York socialite who was famous for her poor singing voice.

When the film was released it credited Nicholas Martin as the sole author of the screenplay however a dispute arose between him and his former partner, Julia Kogan, who lived with Mr Martin whilst he was preparing some of the initial drafts (although not when he completed the final draft). Ms Kogan claimed joint ownership of the copyright subsisting in the screenplay on the basis that she made contributions to the first three drafts and these contributions were then fed into the fourth and final draft.

Ultimately the court found that Ms Kogan’s efforts were not sufficient to claim joint ownership in the final screenplay and, rather usefully, the judge set out a list of 10 key points which can be used decide whether or not a work will be considered to be a work of joint ownership. These points are as follows:

• A party will be a joint owner of the copyright in a work only if he or she (or in the case of a company, its employees) collaborated in the creation of the work. The collaboration must be by way of a common design, i.e. co-operative acts by the authors, at the time the copyright work in issue was created, which led to its creation
• The contribution of each author must not be distinct from that of the other author or authors.
• Contributions by a putative joint author (including those done by way of collaboration) which formed no part of the creation of the work are to be disregarded in the assessment of joint authorship.
• No distinction is to be drawn between types of contribution that did form part of the creation of the work. In particular, there is no distinction which depends on the kind of skill involved in making the contribution.
• The contribution must be sufficient. This depends on whether the contribution constitutes a substantial part of the whole of the work in issue.
• That will be the case if the contribution would be protected by copyright in the work. Thus, if the contribution alone were copied by an unlicensed third party and such copying would result in an infringement of the copyright, the contribution constitutes a substantial part of the whole.
• The test of substantiality in the context of joint authorship of copyright, as in the context of infringement, involves a qualitative as well as quantitative assessment.
• Suggestions from a putative joint author as to how the main author should exercise his or her skill – for instance by way of criticism or editing of a literary work – will not lead to joint authorship where the main author has the final decision as to the form and content of the work.
• It is thus relevant, but not decisive, whether an author is the ultimate arbiter as to the content of the work.
• If joint authorship is established, the court may apportion ownership of the copyright.

So there you have it, 10 principles to live by when creating work in collaboration with others. Of course these shouldn’t replace a contract and, wherever possible, you would be well advised to prepare a document which clearly deals with ownership but, in circumstances in which this isn’t possible, the above can be your guide.