The general rule of copyright ownership is that the person who first created the work owns copyright in it.
This general rule can be varied by agreement or special circumstances. These will be covered in later posts. In this post I want to look at how copyright ownership is determined for collaborative works.
After all, that’s what we’re all about, isn’t it? Connection and collaboration. Co-written e-books, profiling other people’s work in your blog posts, getting someone to help out with the design of your online offering. These sorts of things are an important part of being a blogger.
When dealing with collaborative works, the question to ask yourself is this: Can you separate out what you did from what the other person did?
If you can, you will each own copyright in your respective parts. If you can’t, because your work is so closely entwined, then you will be co-owners, together, in the whole collaborative work.
Side note: It is important to note that co-owners (or “joint authors” as they are sometimes called in copyright) must each contribute to the work as a creator. In other words, they must contribute original expression. They cannot contribute only ideas or facts or something non-original.
These legal principles can best be demonstrated with a few examples:
Sansa and Arya write an e-book together. Sansa writes chapters 1, 3 and the first half of chapter 5. Arya writes chapters 2, 4 and the second half of chapter 5.
Sansa will own copyright in the chapters she wrote and the part of chapter 5 that she wrote. The same goes for Arya.
Sansa can give permission to Cersei to use the parts of the book that Sansa wrote, and she can even transfer copyright ownership in those parts to Cersei if she wishes. But she cannot give permission for the parts that Arya owns. This means that if Sansa wants to give Cersei permission to copy or publish the entire e-book then she will need Arya’s permission as well.
In fact, if Sansa wants to post a sample from chapter 2 on her own blog she will still need Arya’s permission, because Sansa does not own copyright in chapter 2.
Again, Sansa and Arya decide to write an e-book together. They brainstorm and plot out the chapters together. They write the book using Google Docs, adding sections and making changes to each other’s work. They go back forth, adding, deleting, editing, until they can no longer remember whether it was Sansa or Arya who put those particular words into that particular section.
This is what we call a collaborative work or, in copyright lingo, a “work of joint authorship”. It is not possible to separate out Sansa’s work from Arya’s work.
In this scenario, Sansa and Arya own copyright in the whole e-book together. They are co-owners. They both need to give permission to other people to use the work, one cannot give permission without first consulting the other.
For example, let’s say that Cersei emails Sansa and asks if she can post a sample of the e-book on her blog, to boost page views of her blog but also to boost sales of the e-book for Sansa and Arya. Sansa cannot give the go-ahead to Cersei without checking with Arya first.
Sansa also cannot transfer copyright ownership in the e-book without Arya. So pretend that Hay House wants to turn the e-book into a physical book, but wants copyright in the e-book transferred to them first. Both Sansa and Arya have to agree to this, not just one of them.
In fact, strictly, Sansa cannot herself exercise one of the exclusive rights without consulting with Arya first (and vice versa). This is a tricky situation, because it can potentially put the girls in a deadlock where neither one of them can use the work without checking with the other each and every time she wants to do something. The best way to deal with this is to agree upfront about what things they can do without first asking each other. This blog post is the first in a three part series on collaboration. I’ll be covering what things you should do and discuss before collaborating in the third post of this series.
Let’s say we have the same situation as in scenario #2, but Sansa and Arya have also asked Daenerys to do the design, formatting and layout of the e-book for them.
All the same principles will apply as in scenario #2 with this added complication – Daenerys will own copyright in the design and layout of the e-book. This is called copyright in the “published edition“.
Sansa and Arya can grant copyright permissions or transfer copyright ownership in the e-book as written without the design and formatting. So they can give Cersei permission to put an extract of the text of the e-book on her blog, but this must be stripped of the layout work that Daenerys has done.
To reproduce the work with Dany’s layout work, then Daenerys will also need to grant permission. Same goes with transfers of ownership.
This sums up the ownership arrangements for collaborative works and what the copyright owners can do with their works. I know that some of you may have already collaborated with others and already posted things on your blog (or given permission to others) without first checking with your collaborator. In the next post in this series I’m going to cover implied licences, which can apply to these situations. Thanks for tuning in!