Collaboration is great, but what are the copyright implications?
In the last two weeks, we’ve had conversations with creative friends about the concept of work made for hire (WMFH) — and whether you’re a contributor to a project or the presumptive owner of a project, understanding this concept in copyright law is important. In particular, friends and family and colleagues all start out happy with a handshake at the beginning of a collaboration, but when the job is done, and publishing or distribution deals are being considered, the unanswered questions become tricky and often lead to hard feelings. Everybody is friends until money and credit are involved.
As a matter of copyright law, a work made for hire is authored and owned by the party who hires the individuals who create the work. Thus, an employer is the author/owner of copyrightable works created by full-time employees. More common, however, are situations in which independent creative people collaborate on a project like a film or book or record album. It is in these situations where everyone involved should understand whether they are joint authors or working for an author/owner under a work made for hire agreement. Even if, and perhaps especially if, people work on spec, having this understanding at the outset avoids legal mess when it comes time to license, distribute, or publish the work—legal mess that can even kill the opportunity to bring the work to market.
A classic example is the independent film project. A writer/director gets his Andy Hardy enthusiasm going, says, “Let’s put on a show,” and friends, family, et al. agree to work on the project for beer and high-fives. Great! Just surviving through the edit is an accomplishment. But even though everyone agreed to work for free, certain creative contributions are legally the property of those contributors unless there is a written agreement that those contributions are WMFH.
With a film, this might include cinematography, actors’ performances, script writing or collaboration, and above all, MUSIC. If your composer friend is willing to create music for your film, nice! But is she licensing it for limited use in your film or agreeing to a WMFH agreement, which makes you the author/owner of her compositions? The latter would not be very wise or typical for the composer, but the point is to understand the deal and put it in writing, even if nobody is getting paid.
How about collaborating on or ghost-writing a book? These are not the same thing. If a book is jointly authored, then both writers are author/owners of the manuscript. By contrast, a ghost-writer is typically a classic WMFH job because he is hired to write in someone else’s name. This does not preclude the hiring author and ghost writer from negotiating a deal for some combination of payment up front and any share of royalties, but in order to negotiate those terms, copyright ownership in the work must first be explicitly stated in writing.
As mentioned, letting this stuff go until the finished work is being pitched for sale or submitted to festivals, etc. can get messy. In fact, the first hurdle occurs when the individual who believes himself to be the author/owner of the whole work goes to register the material with the Copyright Office. If the filmmaker didn’t get written WMFH agreements, his claim in the whole film would be untrue. Or if the book author didn’t sign a WMFH agreement with the ghost-writer, her claim in the whole book would be untrue.
Similarly, vague and verbal agreements among creators become problematic when the filmmaker submits the work to a festival, or the book author is presented with a publishing contract. In both cases, the parties will often be asked to affirm in writing that they have obtained proper permission for the use of any material in the work that they did not personally produce. The absence of agreements in these cases can lead to rejected submissions, cancelled opportunities, bad feelings, and lawsuits.
Although boilerplate agreements can be found online, seek the aid of qualified counsel when possible, and/or consider some of the free legal services offered to artists in various communities. On that note, even though your cousin might be a perfectly good sound guy on your film shoot, DO NOT ask your sister the real estate attorney to review your intellectual property agreements. You can review our list of copyright attorneys, seek guidance from Copyright Alliance, or find resources through an artist rights organization to which you might belong.
