Stay in the creative zone and OUT of the courtroom!
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.
The copyrights of 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 discernable 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 another’s 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 other’s 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.
About the author: Maria Crimi Speth is an intellectual property attorney at the Phoenix, Arizona law firm of Jaburg Wilk. She has expertise in copyright law, trademark law, Internet law and intellectual property litigation. Maria is the author of the book, Protect Your Writings: A Legal Guide for Authors, available on Amazon. She can be reached at 602.248.1089 or firstname.lastname@example.org.