March 24, 2017,

The Rights of Authors of Joint Works

Enough about Trademark, let’s talk a little bit about Copyright law!  Specifically, the rights of joint authors. I am often asked by co-authors if they can take any action against another co-author for using their joint work in a fashion that they don’t agree with.  Before we answer that, let’s discuss what a joint work is.

The Copyright Act defines a “joint work” as “a work prepared by two or more authors with theI  intention that their contributions be merged into inseparable or interdependent parts of a unitary whole.”  17 U.S.C. §101.  “In a joint work, the joint authors hold undivided interests in a work, despite any differences in each author’s contribution.”  17 U.S.C. §201.

Authors who create a joint work are co-owners of the copyright in that work.  17 U.S.C. §201(a).  Each author has “an independent right to use or license the use of a work, subject to a duty of accounting to the other co-owners for any profits.”  Childress v. Taylor, 945 F.2d 500, 505 (2d. Cir. 1991).  As a result, “even a person whose contribution is relatively minor, if accorded joint authorship status, enjoys a significant benefit.”  Erickson v. Trinity Theatre, Inc., 13 F.3d 1061, 1068 (7th Cir. 1994).

Given the above, each author has the full rights of the copyright owner in the joint work. As a result, it is not possible for a joint author to sue another joint author for copyright infringement.  A joint author does not need permission from another joint author to exercise any of their rights in the joint work.  However, given that each co-author is a co-owner of the copyright in a joint work, any rights they convey in the joint work are not exclusive and are subject to the rights of the other co-authors.  In other words, if a co-author grants a license to someone to publish the joint work, for example, another co-author can still grant a license to publish the same joint work to someone else.

Although a joint author cannot sue another joint author for infringement, a joint author can seek an accounting from any other joint author for any profits that joint author may obtain for exploiting their rights in the joint work.

So, to answer the question above, a co-author of a joint work can take legal action against another co-author for an accounting of any profits made by another co-author from the joint work.  As long as a joint author is exercising their rights as a co-owner of the copyright in the joint work, there is not much that another co-author can do to stop them.  However, joint authors must account to their co-authors for any profits. My advice is for authors to be very careful about who they recognize as co-authors.  Make sure that each person named as a co-author has provided a significant enough contribution to the joint work, to justify their right as a co-author to seek an accounting of any profits made from the joint work in the future.