Copyright for co-authors: If two authors work together, they are joint owners in the copyright, unless the writing was separated in a discernible way.

As a litigation attorney, the most common copyright disputes I encounter relate to who owns the copyrights of works created by one party at the request of another. Such legal  problems can easily be avoided with up front communication and agreements.

The laws governing intellectual property do dictate the rights owned by co-authors, as well as authors and those they hire; but those laws do not necessarily match the intentions of the parties.

Copyright for co-authors

If two authors work together to write a book, they become joint owners in the copyright to the book. Unless the writing was separated in some easily discernible way, both authors own 50% of the work and each have all of the rights that a single author would have.  If both authors contributed to every chapter and worked together to decide on wording, there is no way to differentiate between their work and therefore no method to divide the copyright.

On the other hand, if each author wrote certain chapters of the book and those chapters could be separated without destroying the work, then there might be a way to divide the copyright. Typically, that is not the case.  The applicable federal law 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.”

Co-authorship can be problematic because both creators have the right to commercialize and monetize the product and can easily (and frequently do) interfere with one anothers efforts if there is a lack of cooperation.

When co-authorship is contemplated, my recommendation to my clients is that they enter into a written assignment of the copyright to avoid joint ownership of the copyright. One of the authors can assign his rights to the other author in exchange for compensation, recognition, and other negotiated terms.

If the co-authors cannot agree on one owner, they can both assign the copyright to a company in which they both have an ownership interest. The company, such as a limited liability company, should be governed by a written agreement between the owners. That agreement should include the rights and obligations of the respective members, how to deal with contingencies such as the death of one of the owners, buyout provisions by one owner of the others interest, as well as other operational matters.

When a creative work is owned by only one person or one entity, there is a clearer direction for commercialization of the work and there are far fewer disputes over the respective rights and obligations of the parties.

Ghost-writing and your rights

Similarly, a ghost writing arrangement should begin with a clear understanding of ownership and a written agreement.

Copyright statutes provide that the creator of the work is the copyright owner.  Typically it is the intention of the parties to a ghost writing relationship that the person hiring the ghost writer will own the copyright.  To achieve the desired intent, there must be a written agreement because copyrights cannot be transferred verbally.  The parties must include in their written contract a provision that the ghost writer is assigning his copyright to the author.

Another common work for hire arrangement is with your illustrator and book cover designer.  Ideally for the author, the illustrator will assign the copyrights in the drawings to the author. Once again, that assignment and work for hire must be in a written contract. Otherwise, the illustrator owns the copyrights to her creations and the use of the illustrations by the author is considered to be a license.

The challenge with an implied or a verbal license is that there is a lack of clarity as to its scope.  Can you use the illustrations in a second edition or in a second book? Can you use them on merchandise, such as toys or games based on the book? These answers to these questions will likely not be clear in a verbal or implied license situation.

If your illustrator will not assign the copyrights to you, at the very least you should enter into a written license that addresses the scope of your permitted use.

Protect yourself from the get-go

The next time you collaborate on a book, or hire an illustrator or ghost writer, be sure to discuss ownership of the resulting product and consider consulting an intellectual property attorney to assist you in memorializing your agreements and assigning the ownership to a single person or entity.  The cost of this preventative step will be a fraction of the cost of resolving a dispute later.

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Maria Crimi Speth

About Maria Crimi Speth

Maria Crimi Speth has written 1 posts in this blog.

Maria Crimi Speth is a shareholder at Jaburg Wilk and practices in the areas of intellectual property, internet law, and commercial litigation, representing clients throughout the United States. She is the author of the book, Protect Your Writings: A Legal Guide for Authors.

One thought on “Copyright for Co-Authors, Ghost-Writers, and Illustrators: How to Avoid an Ownership Dispute

  1. David says:

    Maria, nice article. My wife is about to co-author a book with someone. It is about the story of their relationship, so their writings will be interconnected. But, they may write in back and forth segments…each writing part of each chapter. So, from what it sounds like, both of them would own 50% of the copyright. But, could we legally create an agreement where this co-author assigns their copyright to our S-Corporation and we provide a lump sum of money for their work? I prefer this since we are a small company and it would be very hard to administer ALL the different types of royalty %’s based on ALL the different physical/digital distribution methods available to today. Thank you for your time.

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