Doctrines Relating to Joint Creation

By Betsy Rosenblatt

Last Revised April 27, 1998

Joint Works

If a work is deemed "joint," each author has undivided ownership in the work as intellectual property, and none of the authors can unilaterally sell or license the work for use. In order to be considered "joint," a work must be "prepared by two or more authors with the intention that their contributions be merged into inseparable or interdependent parts of a unitary whole." 17 U.S.C. § 101. Courts have interpreted this to mean that all putative joint authors must intend to make a joint work at the time of the creation of that work. See Childress v. Taylor, 945 F.2d 500, 505-507 (2d Cir. 1991).

In order to be considered a joint work, each author's work must be

(1) independently copyrightable (for example, mere "editing" creates a "derivative" work, not a "joint" work). See Ashton-Tate v. Ross, 916 F.2d 516 (9th Cir. 1990) but also

(2) inseparable from the whole. (If it is separable, the work is "collective.")

For a thorough overview of the Joint Author doctrine, see Laura G. Lape, A Narrow View of Creative Cooperation: The Current State of Joint Work Doctrine, 61 Alb. L. Rev. 43 (1997).

Collective Works

A collective work is a copyrightable collection of independently copyrightable works. 17 U.S.C. § 101. The archetypal example of a collective work is an anthology; other examples include a series of film shorts or a magazine containing articles by freelance authors.

Works For Hire

If a work is deemed a "work for hire," copyrights in the work belong not to the creator, but instead to the creator's employer. A work is "for hire"

(1) if it is created "by an employee in the regular scope of employment" or

(2) if it is one of 9 types of commissioned works created by an independent contractor if the parties have agreed in writing that it is a work for hire:
(a) collective work
(b) motion picture or other audiovisual work
(c) translation
(d) supplementary work
(e) compilation
(f) instructional text
(g) test
(h) answer to a test
(i) atlas
17 U.S.C. § 101
Courts have not decided whether web sites should be included in section (b) "audiovisual work." The seminal "work for hire" case, CCNV v. Reid, 490 U.S. 730 (1989), explored the meaning of the work-for-hire doctrine's first prong.
Under Reid, the designation of a work created "in the ordinary course of employment" depends on a set of factors, including: the hiring party's right to control the substance of the work; skill required to create it; source of the materials used in creation, location and hours of the labor, the duration of the relationship and right of the hiring party to assign additional work; method of payment; business of the hiring party; and employee benefits and tax treatment. Using that test, the Court in Reid decided that a sculpture commissioned by CCNV was not a "work for hire" because only one of the factors identified clearly leaned in favor of CCNV; but that the sculpture may have been a joint work between CCNV and Reid.

In an interesting exception, Professors who work full-time for universities do not sacrifice copyrights in the fruits of their research, although that research and the writings that result are done in the course of their employment at universities.

Derivative Work

A derivative work is one "based" on an original, like a translation of a work into a new language or medium of expression. 17 U.S.C. § 101.

Contractual Rights

One way for an employer or web site organizer to ensure ownership of rights is simply to require an assignment of rights by all employees and independent contractors. This will avoid many of the "authorship-ownership" issues discussed above. In order to be effective, language of assignment of copyright rights must be in all employee and outside contractor contracts. To fulfill the requirements for an assignment under the Act, the assignment must in writing and signed by the party making the assignment. It is permissible to provide that a commissioned work is both a "work for hire" and also to assign the rights in the same document.