JOINT WORKS AND COLLABORATION AGREEMENTS
Writing is often thought of as a solitary pursuit. However, many articles or books are the product of a collaborative effort. For example, a writer and an illustrator may work together to create a children's book, several professors may contribute material to a textbook, or a celebrity may tell his or her story to a ghostwriter.
Contributors to a collaborative work are often surprised to discover that their rights in the finished work are substantially less than they had expected. In general, a contributor's rights in a collaborative work will depend on whether the work is or is not a joint work as that term is defined under copyright law.
If a work is a joint work, each contributor will be an equal co-owner of the copyright in the work.The Copyright Act defines a joint work as "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." If a work is a joint work, each contributor will be an equal co-owner of the copyright in the work, and will be entitled to share equally in all proceeds from the work, regardless of the quantity or quality of the contributor's contribution.
A collaborative work will not be a joint work if only one contributor contributes copyrightable expression to the work, or if all of the contributors do not clearly express their intention to treat the work as a joint work. If a work is not a joint work, each contributor will retain ownership of his or her separate contribution, and will be able to use that contribution apart from the rest of the work. In addition, there are no rules to determine each contributor's share of the proceeds from the work, and a contributor who is not happy with his or her share of the proceeds could conceivably withdraw his or her contribution from the work.
In many cases, the contributors to a collaborative work will want the work to be a joint work, but will expect to share the proceeds from the work in some manner other than equally, as provided under the Copyright Act. In other cases, the contributors will not want the work to be a joint work, but will still want to establish rules for dividing the proceeds from the work, and will want to insure that each contributor's contribution will remain a part of the work. In still other cases, a contributor who is not contributing any copyrightable expression to the work will want to share in the proceeds from the work, even though he or she would not otherwise be entitled to do so under the copyright laws.
The solution in each of these situations is a collaboration agreement. A collaboration agreement is a contract that sets forth the rules governing the relationship of the contributors with respect to the collaborative work. At a minimum, a collaboration agreement should address the following issues:
- Will the work be a joint work, or will each contributor retain ownership of his or her separate contribution?
- If the work is not a joint work, will a contributor be prevented from removing his or her contribution from the work, or reusing that contribution in another work?
- What will each contributor contribute to the work? What is the deadline and the required format for each contribution?
- If a contributor fails to complete his or her contribution, can the other contributors complete that contribution and use it in the work?
- How will the contributors share the expenses incurred in creating the work?
- Who will negotiate with agents, publishers or producers for the work?
- How will the contributors split royalties and other proceeds received from the work?
- How will the contributors be credited in the publication or production of the work?
- If a contributor dies after the work is completed, will the contributor's heirs be entitled to receive any proceeds from the work or participate in decisions relating to the use of the work?
A collaboration agreement should be an essential part of any project that involves two or more contributors, whether that project is a book, a screenplay, or a play or musical. While no agreement can address all of the issues that might arise in a collaboration, a comprehensive agreement that is signed by each contributor before the project begins can be a big step in preventing disappointments and disagreements down the road.