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            THE LEGAL RIGHTS OF COLLABORATORS AND JOINT AUTHORS

     (c) 1994.  Law Offices of Lloyd J. Jassin.  All Rights Reserved.

NOTICE:  This article represents copyrighted material and may
only be reproduced in whole for personal or classroom use.  It
may not be edited, altered, or otherwise modified, except with
the express permission of the author.  This article discusses
general legal issues of interest and is not designed to give any
specific legal advice pertaining to any specific circumstances.
It is important that professional legal advice be obtained before
acting upon any of the information contained in this newsletter.

ABOUT THE AUTHOR:  Mr. Jassin is a New York intellectual property
attorney concentrating in publishing and media law matters.  From
1984 through 1987 he was Director of Publicity of Prentice Hall
Press, a division of Simon & Schuster, Inc.  Mr. Jassin lectures
frequently on the subject of publishing law, trademark and
copyright and is the author of numerous articles.  He is a member
of The Authors Guild, Volunteer Lawyers for the Arts and The
American Bar Association -- where he is a member of The Authors
Committee of the Patent, Trademark and Copyright Law Section.

This article first appeared in the Fall 1994 issue of The Authors
Guild Bulletin.  The author gratefully acknowledges the
assistance of attorney Steven C. Schechter for his help in the
preparation of this article.

FOR FURTHER INFORMATION CONTACT:  Lloyd J. Jassin, Esq, Law
Offices of Lloyd J. Jassin, 888 Seventh Avenue, NY, NY 10106.  He
can be reached at either [phone] or at [e-mail].

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     Authors are sometimes lax in their business affairs.
Indeed, an astute observer once commented that authors and agents
do lunch not contracts.  However, to avoid disputes concerning
rights of authorship and ownership, whenever two or more people
collaborate to write or develop a creative project, it's wise to
have a written collaboration agreement that defines each party's
rights and obligations.  Absent a written agreement, ownership of
the authors' creative efforts will be governed by copyright law and
the courts -- not necessarily in pursuance to the parties'
intention.


The Legal Rights of Co-Authors

     Since the laws which apply to copyright ownership and
partnerships are quite complex, many authors, artists and other
creative people do not fully understand their rights and
obligations as co-authors or collaborators.

     The essence of the collaboration agreement is copyright
ownership.  Copyright ownership affords the owner, or owners, the
exclusive right to reproduce the work, to distribute copies, to
display and perform the work publicly, to prepare derivative works
based on the copyrighted work, as well as license others to do
these things.

     As tenants-in-common, each joint author, from the moment of
creation, owns an undivided equal interest in the whole work.  That
means that, unless they agree otherwise, two co-authors each own
one-half of the entire work; three co-authors each own one-third,
etc.  This interest applies to the whole work, and portions of the
work are not divided between the co-creators without an agreement
to the contrary.  Unless they agreed to a different division, each
co-author of an illustrated children's book, would be entitled to
an equal share of profits from any licenses granted in the joint
work, even if the license was just for the illustrations, or just
for the text.  Indeed, under copyright law, a relatively small
contribution may, absent a contrary agreement, entitle a co-author
to an equal share of profits.

     Under the laws of joint authorship, each co-author may,
without the consent of his or her co-author, grant non-exclusive
licenses to others to use the work, subject only to a duty to
account to each co-author for profits.  In other words, each
collaborator can grant permission to a third party to use the work
on a non-exclusive basis without the consent or knowledge of his or
her co-author or co-authors.  Problems commonly arise when there
are multiple offers for the work or requests for exclusive rights
and where there is no agreement between the co-authors.

     A joint author cannot, however, license the exclusive rights
in a work to another party without prior written consent of his or
her co-author.  Without the unanimous consent of his/her co-
authors, exclusive grants to the entire work are forbidden.
Moreover, unlike non-exclusive grants which may be oral, no
assignment of exclusive rights is valid unless it is in writing.
In effect, a recalcitrant co-author can prevent the other co-author
from licensing or assigning exclusive rights in the work to a third
party.

     Classifying a work as a joint work determines not only initial
ownership of its copyright, but also the copyright's duration, and
the right of termination.  For joint works created after January 1,
1978, copyright protection endures for fifty years after the death
of the last surviving co-author.  Under the Copyright Act, grants
or licenses of copyright made by two or more co-authors on or after
January 1, 1978 may be terminated after thirty-five years by a
majority of the authors who signed the grant, provided timely
notice of termination is given.


What Constitutes Joint Authorship?

     The formal legal definition of 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" (1976 Copyright Act, Section 101).  The law also
mandates that each author's contribution be independently
copyrightable.

     The key element is the authors' intent at the time the work is
created.  To determine intent, courts sometimes look for evidence
of "billing" or "credit".  Accordingly, an author's good faith
description of him/herself as sole author on a copyright notice,
copyright registration, or elsewhere, may be probative of intent.

     Secondly, in order to qualify as a joint work, each author's
contribution must be independently copyrightable.  In general,
ideas, suggestions and refinements standing alone are not
protectabale under the Copyright Act.  Recently, in Erickson v.
Trinity Theatre Inc. (7th Cir., 1994), a federal appeals court held
that an actor was not a joint author of a play because his helpful
advice and refinements made during improvisational scenes were not
copyrightable contributions.

     Nonetheless, one must be aware that each contribution must be
considered on a case-by-case basis and that a relatively small
creative contribution may, absent an agreement to the contrary,
entitle a collaborator to an equal interest in the entire work.
Moreover, in the absence of a written agreement or release, a court
may imply joint authorship from the circumstances.


The Collaboration Agreement

     While the written collaboration agreement will vary depending
upon the facts, the following are some of the key issues that
should be considered.

     Particular care should be applied to dealing with how the
proceeds of the work are shared and who controls its use.  How
collaborators share financial and creative control, ultimately,
depends on their bargaining power and actual contribution.
However, even though one author may have a greater monetary
interest in a work, it's not unusual for his or her collaborator to
have an equal say in how the work is exploited.

     If one of the collaborators needs money to get through the
period in connection with the writing of the book, the parties may
agree that one co-author receive a larger split of the advance.  In
exchange, the recipient may forego a percentage of future
royalties.  Alternatively, these monies can be recouped or refunded
from future proceeds, with any additional monies shared as set
forth in the authors' agreement.  In general, the sharing of
expenses is related to the sharing of receipts.

     In some circumstances, where one writer is far more
knowledgeable in publishing matters, it may be appropriate to grant
that author the exclusive right to negotiate on behalf of the
parties with respect to agents and publishers.  Generally, the
junior partner will reserve the right of final approval, which
should not be unreasonably be withheld.

     Billing credits also depend on the bargaining power of the
parties.  Issues include size and prominence of names, as well as
order of names on the title page.  If there's brand equity in your
co-author's name, it may make sense for that person's name to
appear first.  Where the division between the authors'
contributions is not clear-cut, alphabetical order is a sound
approach.  Author credit designators include the terms "by Me and
You" or "by Me with You" or "as told to Me."

     Other issues that should be addressed include creative
approvals, sequel rights, repayment of the advance if the
manuscript is rejected, warranties and indemnities, death and
disability, and how to handle both minor and major disputes.


Dealing With Non-Collaborators

     When dealing with non-collaborators it is very important to
have a short, written release which expressly states that their
work shall be considered a "work-for-hire" for copyright purposes.
This ensures that the one who commissioned the work owns and
controls the copyright.  As a fall-back position, in the event the
work is determined not to be "work-for-hire",  it is essential that
the hiring party obtain a written assignment of all or part of the
rights.

     It is also important to remember that even those who do not
qualify as joint authors for copyright purposes, for example,
financiers, patrons or contributors of uncopyrightable ideas, may
still share in the profits and control of a work through an
appropriate contractual arrangement.


Conclusion

     As discussed, the ideal time to address the major issues
confronting collaborators is before the actual collaboration
process commences.  Although co-authors might not feel comfortable
discussing long-term financial issues or the eventuality of a
dispute or even the death of a partner, it is always easier and
less expensive to deal with these issues up front before
collaborating rather than later, after a dispute arises.

                                    ###

    (c) 1994.  Law Offices of Lloyd J. Jassin.  All Rights Reserved.
                         E-mail: [e-mail]