BY BOB LABATE and PETER STRAND
Why do artists, writers, musicians, photographers and producers constantly trip over copyright issues? Copyright ownership is an extremely valuable commodity because the person (or company) who controls the copyright usually has significant influence over any project based on the copyrighted work and who makes money from the use of the copyrighted work.
Such power is based on the simple fact that, with some important exceptions, the copyright owner holds a monopoly on the performance, distribution, reproduction, adaptation or display of the copyrighted work. This is true whether the work is literary, dramatic, musical, artistic, sculptural, pictorial, graphic, architectural or visual, so long as the work is original and is fixed in a tangible form of expression.
The U.S. Copyright Office maintains an excellent "plain-English" Web site (www.loc.gov/copyright), and best of all, since January 1, 1978, the copyright arises automatically when the work is created. So why do copyright problems continue?
The problem is that many people do not understand the nature of copyrights. Ownership of the copyright means the right to control use of a work. For example, you write a screenplay. As soon as you write that screenplay (or type it or load onto your hard drive or even tape record yourself reading it), you own the copyright. That means no one can rewrite it, make it into a film or a play or a TV show, publish it, perform it, or even write a sequel or a prequel without your permission. You dictate the terms of granting permission, subject to your bargaining power, leverage, how badly you want to be published or how desperate you are for money. You do not have to allow anyone to do anything with your screenplay.
But if you do want to exploit your work, protect yourself–the unscrupulous will take your work without permission. So, how do you protect your work? Step one, cultivate your copyright.
Basic Copyright Cultivation
So what do we mean by Copyright Cultivation and exactly how does one "cultivate" an intellectual property right? No one answer applies to all situations, but with apologies to horticulturists, here are a few suggestions.
Preparing the Ground: Creating something original is rarely easy and very few works spring out of the creator’s mind in finished form. Often, the work is the result of a collaboration of two or more individuals and takes years to complete. Yet, even though a completed "work" does not yet exist, you can take steps to protect your interest in whatever emerges.
Collaborating With Others: If two or more people intend to produce a single copyrighted work, it is important to clarify who will have what rights in the final work. A great many disputes arise between partners who disagree over the use of their work or the amount which each should receive from such use.
In the absence of an agreement to the contrary, the joint-owners share equally in the joint work. Simply put, this means that, for two owners, each would be entitled to one-half of the proceeds regardless of the quality or quantity of that author’s actual contribution. If there are three owners, each receives a third, and so on.
Moreover, in the United States, any joint-owner may use, exhibit or license the copyright without the permission of the other joint owners. This is contrary to the expectation of many joint owners who mistakenly believe that their approval is required before the copyrighted work is used, exhibited or licensed. Normally, the only legal recourse which one joint-owner has is the right to an accounting for another joint owner’s use of the work.
In certain foreign jurisdictions a license to use copyrighted work will not be valid unless all joint-owners agree and, for international projects (such as film), distributors routinely require the approval of all joint-owners. But no such requirement exists if the work will be used solely in the United States.
The lesson therefore is simple. If you collaborate, you must decide at the beginning of the collaboration how the proceeds will be divided and who will be entitled to control the use, exhibition or license of the copyright. Can one joint-owner make decisions regarding the use of the copyright or is the agreement of all joint-owners to be required? Without an agreement you could find that your copyright is being used without your knowledge.
Working Alone: Even those who work alone are at risk from others who claim to be joint-owners of the work.
Whether intended or not, there are many ways by which a claim to co-ownership might arise. There are many factors which determine co-authorship but, essentially, the court will ask whether, at the time of creation, the parties intended that their efforts be incorporated into a greater work. As stated above, depending upon the medium, the contribution of the alleged co-author need not be significant either in quantity or quality, and it need not be a contemporaneous contribution.
Therefore, care should be taken when asking others for assistance in connection with the work. If involving others is essential, then their involvement should be on the understanding (preferably in writing) that they are not co-owners of the work. An editor who reviews an author’s work in connection with publication is not deemed to be a joint-owner of the work, but a question of joint-ownership might arise if the author repeatedly submitted the work to a friend for advice and redrafting.
In one recent case, an individual with extensive knowledge of Islam and Malcolm X, who assisted Denzel Washington in preparing for his role as Malcolm X, claimed to be a joint-owner of the film. The appellate court denied the co-ownership claim on the basis that he did not have "creative control," of the film, but the costs of beating back such claims can be enormous.
Also keep in mind that if you are employed to create copyrightable work for another on a work made for hire basis, you may find that your own creations are claimed by your employer. While you may assume that characters or works created at home or on your lunch-time are solely your creations, your employer may not and may claim to a co-owner, or even the sole-owner, of your work.
© 2001 Robert J. Labate. This column is provided as a source of information and is not to be construed as legal advice or opinion. You may contact me via email at rjlabate@mbc.com or, via mail, to Robert J. Labate, McBride, Baker & Coles, 500 W. Madison, 40th Floor, Chicago, IL, 60661 312/715-5700. All individuals depicted or described are fictional.