To Be Or Not To Be Joint Authors: The Nexus Among Intent, Control, & Joint Authorship

In an attempt to resolve this issue, the Guild spoke directly with the U.S. Copyright Office. Much ado was made about a circuit split regarding the test for joint authorship. Throughout the United States, circuit courts of appeals are not settled on the issue of what is definitively required to constitute joint authorship. The primary issues that concern the circuit courts are the authors’ intentions at the outset of a work and the level of control exerted by the authors over the work. The courts are split on whether it is the authors’ intent or the authors’ control over the work that matters most. The Guild believes this distinction is either non-existent or inconsequential and wonders why the Office raised this issue.

To put the importance of this matter in perspective, let’s imagine that you are dating someone with no intention of ever tying the knot, and then one day you wake up only to be told that you are now married— forever. This situation is frighteningly comparable to one that can arise when two collaborators intend to simply experiment on a project together but later are told by the Office that the law deems their work to be joint. Perhaps more sobering: a joint authorship means that you and your co-authors will be “married” to each other on the project for the life of the copyright—regardless of whether the project died or became a box office hit. At the very least, joint authorship entitles co-authors to an equal and undivided interest in the whole work, meaning that (a) decisions to make an exclusive license must be unanimous and (b) all profits of any kind are shared equally.1 Each co-author has the ability to issue a non-exclusive license for the entire joint work, even if the other co-authors disapprove. Being a co-author of a joint work can both give and take certain rights. As such, you should know how to avoid the consequences of your work being labeled a “joint work” by the U.S. Copyright Office when you and your colleagues intend to remain sole authors of your respective contributions. See Wilson and Sevush, How to Avoid Rent Control (September 1997), for more information concerning the implications of joint authorship.

The Copyright Act of 1976 states that a joint work is a “work prepared by two or more authors with the intention that their contributions be merged into inseparable or interdependent parts of a unitary whole.”2 While the Guild is confident of its (time-tested) reading of the Copyright Act, whenever legal language is involved, different readers may argue different interpretations. In fact, some believe that differing interpretations of the Copyright Act have resulted in a “substantial split between the courts of appeals of the United States and substantial confusion among the district courts…with respect to the test for determining joint works or co-authorship under the Copyright Act of 1976.”3 However, others view the language of the Copyright Act in a way that suggests that there is not a circuit split among the courts. Now, what exactly is a “circuit split”?

The United States Circuit Courts of Appeals (Regions shaded according to circuit location)

The United States federal court system is separate from each state’s court system. It is broken into regions, each containing its own circuit court of appeals, second in power only to the United States Supreme Court. A “circuit split” merely indicates that the courts of different regions disagree on a specific point of law. Some- times the Supreme Court will resolve the disagreement; but sometimes it does not deem the issue ripe for its consideration and the disagreement persists, as some believe is the case with joint authorship and intent.4 In entertainment matters, the Second Circuit (e.g., New York) and the Ninth Circuit (e.g., California) often disagree. These differences are typically rooted in the interests of the circuits’ respective industries, such as motion pictures versus theatre or celebrity privacy versus media corporations’ first amendment rights.

The Dramatists Guild believes that, regardless of a court’s location, a co-authorship can only happen if and when all collaborating authors explicitly intend that their creative contributions merge into a joint work. As explained below, the Guild’s belief has firm legal footing. Before outlining the Guild’s position, we will review the two views on the “circuit split”: first, that a circuit split exists between the Second and Ninth Circuits; second, that no circuit split exists at all.

A. I See a Split!

1. The Ninth Circuit’s Approach: California, Hollywood, and the Studio’s Medium

California is home to a corporation’s medium (e.g., motion pictures), with Hollywood being the pinnacle. The Ninth Circuit focuses on “control” when determining if collaborative effort constitutes a joint work or a sole creation. Like the Second Circuit, the Ninth Circuit requires a party to establish joint authorship by demonstrating that each party made an independently copyrightable contribution to the work. However, unlike the Second Circuit, the Ninth Circuit expressly requires each party (a) to demonstrate control over the creation of the work, (b) to prove the existence of objective manifestations of a shared intent to be co-authors, and (c) to proffer evidence that audience appeal “turns” on both authors’ contributions.5

A duck, a rabbit, or just an illusion?

In& Aalmuhammed v. Lee, the court’s decision concerning Spike Lee’s film production of Malcolm X highlights the Ninth Circuit’s approach.6 Spike Lee co-wrote the screenplay and directed and co-produced the film that starred Denzel Washington in the title role. Washington asked Jefri Aalmuhammed to assist with preparation for the starring role. Aalmuhammed made significant contributions to the film, including: rewriting several specific passages of dialogue that appeared in the film, writing scenes about Malcolm X’s Hajj pilgrimage, creating at least two entire scenes with new characters, translating Arabic into English for subtitles used in the film, supplying his voice for voice-overs, editing aspects of the film during post-production, and providing a great deal of scholarly and creative help. Yet, the Ninth Circuit did not consider Aalmuhammed to be a joint author of Malcolm X.

This approach to determining joint authorship may have been appropriate because of (1) the financial structure of the motion picture industry, wherein an author relinquishes the majority of ownership over the copyright in exchange for something like a six-figure payment as well as health and pension benefits, and (2) the resulting singular and static interpretation of the screenwriter’s work. The court’s concern in Aalmuhammed was that a film collaboration could not function in an efficient manner if every studio employee that made a suggestion to the final static product was considered a co-author and was entitled to share in authority and revenue streams with all the other “co-authors.” According to the Ninth Circuit, when demonstrating authorship, “control in many cases will be the most important factor.” Aalmuhammed, in this instance, did not have the last word as related to each and every one of his contributions. He lacked “executive control” over his contributions because his work was at all times subject to the final approval of Spike Lee.

2. The Second Circuit’s Approach: New York, Broadway, and the Author’s Medium 

New York is home to an author’s medium (e.g., theatre), with Broadway being the pinnacle. The Second Circuit focuses on the collaborators’ respective intentions when determining if a collaborative effort constitutes a joint work. Many believe that this is notably different from the Ninth Circuit’s posture. The Second Circuit holds that authorship of a joint work is created by demonstrating that (a) each party made an independently copyrightable contribution to the work and (b) both parties fully intended to be co-authors.9 As with the U.S. Copyright Act of 1976, the Second Circuit does not expressly define a control element.

The Second Circuit’s main case concerns the Pulitzer Prize- and Tony Award-winning Broadway musical Rent. Here, intent—not control—was the court’s focus in rejecting the joint authorship claim. The court emphasized that “the touchstone of the statutory definition [of the Copyright Act of 1976]” is “the intention at the time the writing is done that the parts be absorbed or combined into an integrated unit.”10 The court relied on an earlier decision that emphasized that “care must be taken…to guard against the risk that a sole author is denied exclusive authorship status simply because another person renders some form of assistance” and found that a clear and specific finding of mutual intent to be co-authors is necessary to form a joint work.11 Because the plaintiff had “intended to retain at all times sole decision-making authority” as to what went into Rent, the court held against joint authorship. The focus of analysis in New York is, more generally, the intent of the authors.

B. I Do Not See a Split

On the edge of the coin, there exists another view suggesting that there really is no circuit split at all. While the Ninth Circuit relies on control as its main element, the Second Circuit also uses control as one of its indicia to determine if both authors intended a joint work. Additionally, the two circuit courts’ concerns seem analogous. Both circuits are focused on the negative implications of declaring a joint work when other people merely offer assistance. As such, some argue that the circuits are not divided on their interpretations of the Copyright Act and that no such “circuit split” exists.

The Guild is of this view. Theatre relies heavily on experimentation, collaboration, and recycling of previous work. Therefore, dramatists rely on the well-established theatre standards that nobody can become a co-author “by accident.” Each contributing author retains exclusive and explicit control over his or her contributions until the collaboration has reached a pre-determined threshold (e.g., twenty-one consecutive paid public performances), at which point the collaborations “merge,” usually by contract, into a unitary whole. Again, see Wilson and Sevush, How to Avoid Rent Control (September 1997), for more information concerning the implications of joint authorship. So while a contribution is “fixed” in a tangible form, the project as a whole may evolve over time. To read the Copyright Act as asserting a joint work the moment two separate contributions are jotted on the same piece of paper would essentially destroy the theatre industry as we know it.

To review some allusions from above, part of the reason that a joint work might be formed more quickly in motion pictures (generally in the Ninth Circuit) is because writers are often paid up-front for their copyrights and receive health and pension benefits. Dramatists (generally in the Second Circuit) are paid on the back-end—licensing their works for small advances and hoping for larger payoffs in royalties later—all the while keeping ownership of copyright. If a particular collaboration does not result in a commercially viable work, the individual authors will of course want to recycle their respective, fixed and copyrightable contributions. Regardless of the interpretation of the Copyright Act relied on by a court, when collaborating authors decide that there is mutual intent for their work to be indivisible at the outset, the work becomes a joint work under the law.

Nevertheless, mutual intent at the outset of a work is very different from collaborating on a work to see if it may become viable as an indivisible whole. In the theatre industry, mutual intent is not irreversibly determined at the outset but develops as the project evolves. For example, if there are twenty-one consecutive paid public performances in a regional theatre, then the author’s individual (fixed) contributions might be merged into a unitary whole (e.g., within two to five years of the collaboration’s inception). Dramatists mix and match ideas with various people and their experimentation tends to occur long before there is any intent for the collaboration to merge into a joint work. As such, the hope is that these stipulations are set forth by contract.

Revisiting the earlier issue raised by your fellow Guild member highlights the U.S. Copyright Office’s confusion as to theatre industry standards for collaborative works. Recall that the Guild member wanted to register only her line contributions to a play fixed in tangible form, but she submitted a deposit to the U.S. Copyright Office containing her line contributions and redacted lines from the absent collaborator. Because such a presentation does not change the intent of either author that the work not be joint, the Guild firmly believes that the Office was wrong to reject her application under such a theory.

Dramatic authorship is unique. Even a final project continually evolves and is subject to innumerable interpretations. Dramatists recycle the same contributions to a work rather than sticking to one final static draft of the overall work. From circuit court rulings, it is clear that intent and control both matter to some extent in determining whether collaborations are joint works under the law. If you should find yourself (knock on wood) in a similar position to the Guild member described in this article, it is more efficient for you to submit deposits to the Copyright Office that include only your individual contributions. By doing so, you will avoid potential confusion by the U.S. Copyright Office concerning your intent and collaboration methods.

Of course, the sure-proof way to protect yourself from a flat-out rejection by the U.S. Copyright Office and potentially costly litigation is to put your intentions down on paper in the form of a written contract. It is always the case that a contract evincing intent to be coauthors or sole authors is dispositive. But if you don’t have a contract explicitly stating your intentions, the next best thing you can do to protect yourself is to know the law. You should know that there is no set standard that is consistently followed by the courts regarding intent, control, and joint authorship. And you should know that you have persuasive arguments in your favor—regardless of the side of the “circuit split” on which you find yourself.

SARAH MERRY is a second-year law student at Brooklyn Law School. She served as the Guild’s Business Affairs Summer Associate in 2012. 

1. 17 U.S.C. §201(a); see also Oddo v. Ries, 743 F.2d 630, 633 (9th Cir. 1884).
2. 17 U.S.C. §101.
3. Seth F. Gorman, Who Owns the Movies, 7 UCLA Ent. L. Rev. 1 (Fall 1999).
4.  See Richlin v. Metro-Goldwyn Pictures Inc. (2008 WL 4685063).
5. See Aalmuhammed v. Lee, 202 F.3d 1227, 1234  (9th Cir. 2000).
6. Id.
7. Aalmuhammed, 202 F.3d at 1234; see also  Berman v. Johnson, 518 F. Supp. 2d. 791 (E.D. Va.  2007).
8. Aalmuhammed, 202 F.3d at 1235.   
9. Thomson v. Larson, 147 F.3d 195, 200 (2nd Cir.  1998).
10. Thomson, 147 F.3d at 198.
11. Childress v. Taylor, 945 F.2d 500, 504 (2nd Cir.  1991).
12. Thomson, 147 F.3d at 202.