Works Owned by One or More Creators

Copyright protection begins when an original work becomes fixed in a tangible medium of expression. (For more information on when a work is "fixed" and what qualifies for protection, see Copyrightable Subject Matter). As a general rule, the creator of the work (the author) owns the copyright.

You are the author of a work if you create something original, as opposed to merely copying the work of another. For instance, you are the author of a blog post when you put the story/idea/information into "expression" through words. In contrast, merely coming up with an idea does not make you the author because nothing has actually been expressed.

As the sole owner of a copyrighted work, you enjoy certain exclusive rights. However, if you collaborate with other authors to produce a final work, or if you allow another person to use copyrighted work in a collection of works, copyright law treats you differently.

Joint Authorship

When two or more authors materially contribute to a work, and each does so with the intent of creating a single work, the work is "jointly authored."

A "material contribution" must be independently copyrightable (i.e., original, fixed in a tangible medium of expression, not non-copyrightable material like facts or ideas). If you only contribute non-copyrightable elements, such as ideas and suggestions, then you're not an author.

For example, if a friend suggests a topic that you subsequently blog about, you alone own the copyright on the posting because your friend contributed nothing but non-copyrightable material (the idea).

As another example, let's say you work with a group of journalists and someone routinely edits your work. If the editor is only fixing facts or making minor grammatical changes, you are still the sole owner of the copyright. However, if the editor's changes are more substantial, such that he is contributing original content or points of view, the work might be jointly authored.

Finally, consider multiple individuals contributing to the creation of a website. One person does page layout, another handles graphics, and a third develops the underlying code. Copyright ownership will vest jointly in all of these contributors.

Your Legal Rights As a Joint Author

If you are a joint author, you hold an equal interest in the copyright with the other authors regardless of your actual contribution to the work.

Technically speaking, you hold an undivided ownership share in the copyright. An undivided ownership share provides nearly all the rights of individual ownership, while also sharing the value of those rights. As a joint author, you retain the right to reproduce the work, create derivative works, distribute copies of the work, and publicly display or perform the work without getting the permission of the other joint authors. Of course, this goes both ways, and the other joint authors may do the same. You can also transfer your undivided ownership share without seeking approval.

As a joint author, you cannot grant an exclusive license. Granting an exclusive license would directly harm the other joint authors, and thus you need their approval. See the section on Copyright Licenses and Transfers for more on the difference between exclusive and non-exclusive licenses.) However, you may grant non-exclusive licenses without approval from the other authors, which can lead to situations in which each author licenses the work to a different publisher.

Finally, as a joint author you share in the value created through performance, distribution, or licensing of the work. Because each joint author only has a share in the copyright, any value must be distributed equally to all joint authors.

What to Consider if You are Working with Other Authors

You don't have to be restricted by the rules of joint authorship detailed above. Instead, you and your co-authors can enter into a collaboration agreement (a contract) to alter your rights and obligations. A collaboration agreement defines the responsibilities, compensation, and control of each author. Collaboration agreements may also designate how credit will be presented (e.g. the list of authors) and may outline the approval process to license or transfer an author's rights. As an example of a collaborative agreement, see Hollywood Comics' template.

Collective Works

A collective work consists of smaller works that are independently copyright-protected. Whereas a work of joint authorship is a single copyrightable work with contributions that were not intended to stand alone, a collective work compiles constituent parts that do (and often were originally intended to) stand alone.

The person who assembles the collective work (the "collective author") owns the copyright to the selection and arrangement, but the owners of the copyrights to the underlying works retain their rights. See 17 U.S.C. 201(c), 17 U.S.C. 103(b).

Copyright law gives the collective author the right to reuse the underlying works in a subsequent publication if that subsequent publication is:

  1. the same collective work;
  2. a revision of the same collective work; or
  3. a later collective work in the same series.

See 17 U.S.C. 201(c). If the collective author wants to include the underlying works in a different manner than the above three categories, she needs to get express permission from each copyright owner.

Some common examples of collective works are poetry anthologies, newspapers, magazines, and scholarly journals. In general, each discrete edition of the newspaper, magazine, or journal is a collective work made up of individual articles, some of which are written by freelancers. (For a discussion on the difference between the work created by a freelancer--or independent contractor--and an employee, see the section on Works Owned by Someone Else.) The freelancer owns the copyright to his individual contribution, and the publisher owns the copyright to the collective edition of the newspaper.

Generally, a publisher can reprint an article from one issue in a later issue of its newspaper or magazine ("a later collective work in the same series"). However, when publishers publish in new media, the legal issues get more complex. In one case, the New York Times digitized articles from its print edition, put them in a database, and made them individually available online. The Supreme Court held that because the online version of the articles were viewable individually, they violated the freelance writers' copyrights because they were were "disconnected from their original context" and did not replicate the original selection and arrangement. See New York Times Co. v. Tasini, 533 U.S. 483 (2001). On the other hand, the Court suggested that preserving the collective work through microfilm would be a permitted revision because the microfilm maintains the original organization, layout, and context of the collective work. Thus, a magazine publisher can distribute digital scans of their print magazines, since the resultant work uses the "almost identical 'selection, coordination, and arrangement' of the underlying works as used in the original collective works." See Faulkner v. National Geographic Enters., 409 F.3d 26, 38 (2nd Cir. 2005).

While most cases involve a collective work transitioning from print to digital publication, there is no reason to believe the same would not hold true in the opposite direction. Thus, if you created a web page of the most influential blog posts from 2001-2005, getting permission from each original poster to do so, you would need to retain the selection, coordination, and arrangement in order to also distribute a print version.

What This Means For You

When you allow someone else to use your work in their collective work, you are not giving the collective author the rights to do whatever she wants. If you are compiling a collective work, the permission an author gives you to use a work in your collective does not give you free reign to use that work as you please. You should pay particular attention to these points if you are publishing or distributing in multiple mediums. If you have a particular concern about how, where, and when works may be used, be proactive and ensure those details are finalized in a written contract. See the sections on Copyright Licenses and Transfers and Getting Permission to Use the Work of Others for more information.


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