With our members hard at work writing and revising pieces for End of Play.®, the Guild has received a number of inquiries asking when it is appropriate to give someone a co-writing credit.
To answer that question, first it is important to understand one of the basic fundamentals of copyright law: the idea/expression dichotomy. Under copyright law, only an author’s original expressions that are fixed in a tangible medium (i.e. written down or recorded) are protected by copyright, whereas ideas and concepts are not. This prevents someone from claiming ownership over standard tropes such as the “vigilante superhero” because if concepts like this could be owned, the impetus to create would come to a screeching halt, as there would be a barrier to nearly every story a writer may want to tell.
Instead, copyright only attaches to the original expressions of those ideas and concepts – that’s why we can have both a Batman and a Daredevil. It is this idea/expression dichotomy that should inform your thinking when considering giving someone a co-writing credit, meaning you should ask yourself whether this person contributed original expressions to your work rather than mere concepts or ideas.
Furthermore, you should evaluate how much original expression a person actually contributed. If it is one line or a lyric, which you as the author have the sole right to keep or reject, then that does not merit a co-writing credit since the ultimate decision to include it rests with you. This notion comes from the doctrine of joint authorship.
Under U.S. Copyright Law, in order for someone to be considered a joint author to a work, they must contribute an independent copyrightable contribution AND there must be intention by the authors to be co-authors. Intention can be measured by the level of control of a person exerts over the work, i.e. if the decision to include something or not lies solely with one person, then that would demonstrate an intention NOT to be co-authors.
You should also take into consideration the role that person has played in the process overall. Theatre is inherently collaborative; writers receive suggestions from directors, dramaturgs and even actors and designers all the time during the production process and some may even contribute original expressions but that is what they have been hired and paid to do. Whereas, you as the author, an independent contractor who owns your copyright, are compensated via the licensing of your work. Think about it this way: an author may give notes to an actor, but that does not make them a co-director, entitling them to receive half the director’s compensation; thus a director providing suggestions to an author does not make them a co-author.
One question we get after we explain why a person should not be a co-author is “But this person was so helpful in my writing process, I want to give them credit to say thank you for their contributions. Can I give them a ‘Developed by’ or ‘Concept by’ credit?”
The short answer is that you can, but we strongly advise against it. This goes back to the idea/expression dichotomy: concepts are not copyrightable. Furthermore, once you give a credit that even remotely implies authorial contribution, you are opening yourself up for potential claims by that person for co-authorship, which you were trying to avoid in the first place.
Finally, if you have determined that the person you are working with is indeed a co-author, we strongly urge you to enter into a collaboration agreement. Without a collaboration agreement in place, your relationship with your co-author(s) will be governed by the doctrine of joint authorship. This is important to note because joint authorship gives co-authors the right to:
(a) require unanimous consent to issue an exclusive license
(b) issue non-exclusive licenses for the entire work without the approval of the other(s)
c) share equally in the profits of any kind earned by the work
However, you and your co-author(s) may want to define your rights and obligations differently. You can find templates for collaboration agreements for both a play and a musical here: www.dramatistsguild.com/contracts.
For more information on co-authorship, check out the following articles:
Copyright Advocacy: Childress v. Taylor
Contracts 101: Collaborations
Copyright Advocacy: The Varied Copyrights of Theatre
And remember, our Business Affairs team is always available at the HelpDesk to answer your questions.
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