A defense of a strict joint authorship standard
There’s an evolving criteria for determining when a contribution to a copyrighted work can be considered as a form of joint authorship. A few relevant judicial decisions have built on top of the statutory language of the Copyright Act of 1976 to gradually impose a stricter standard. The question on how to separate mere collaboration from joint authorship is not trivial nor exclusively of scholarly interest. Given the current ways on which culture and knowledge is produced in modern networked environments, the context under which this problem is analyzed is widely different and more diverse than the one on which the Copyright Act was drafted. In this context, I believe that a stricter standard is the best way of enabling collaboration with low transaction costs and better predictability.
Under the Copyright Act of 1976, a “joint work” was defined as a work prepared by multiple authors “with the intention that their contributions be merged into inseparable or interdependent parts of a unitary whole.” This definition clearly describes the relationship between two music composers working on a song or two researchers collaborating in a book or journal article. However, it seems to fall short when addressing more complex works or collaboration environments like the research and production stages that precedes a full length documentary or a historical fiction. More recently, a series of court decisions have tried to apply this language to different scenarios. According to the Childress v. Taylor and Aalmuhammed v. Lee decisions, whenever there’s no prior contractual agreement between the parties, an individual’s contribution to a copyrighted work can only be deemed as a form of joint authorship if (1) her contribution is independently copyrightable, (2) has manifested intent to be bound as joint author, and, (3) the degree of control that the alleged author has in the final work.
At best, this is a detailed judicial interpretation from the statutory language established in the Copyright Act. For some critics Courts are “misconstructing” the statute to distinguish collaborators and authors where the law didn’t do so. That’s a clear legal problem and there’s still much to be argued on one side and the other. However, beyond the discussion of what the Law really says, there’s the question of which standard serves better the goal of “promoting the progress of science and useful arts.” In other words, there’s the question of what the Law should say regarding this issue. To raise this issue is not an unheard departure from the nature of “authorship,” given the fact that his criteria has changed in the past. For instance, “works that the 1909 Copyright Act would have characterized as joint works or as works made for hire will not be joint works or works for hire under the 1976 Copyright Act.” Therefore, the way on which this rule should keep evolving is the question that I wish to address in this paper.
I firmly believe that we need a strict standard to determine when some form of collaboration in a work can be interpreted as a way of joint authorship for the collaborator. We need a clearly defined rule that shouldn’t need to be interpreted on a case by case basis by a Court, but one that could be easily applied by authors and businesses. We live in a world where collaboration and joint authorship are increasingly everywhere: from Wikipedia articles, to Github repositories, to collaborative writing of fanfiction. Hence, we cannot rely on Courts to address every single dispute where a collaborator thinks he deserves credit as an author of a work. In the absence of a signed contract between the parties, we should opt for a system with the least transaction costs for the parties. This is the only way on which we can ensure that innovation, scientific research and creativity can thrive in the future free of expensive legal battles. In this context, the incentives to the parties should be aligned to move them to sign contracts and agreements in the context of every kind of collaboration. Without this prior arrangements, the law should prefer the party with the greatest involvement in the project and who can probe best its decisive contribution. Under a system like the described, it may be the case that certain kinds of contributions may end up being regarded by the Law as less valuable than what they really where but this is a necessary cost to enhance cultural and scientific developments and may as well be seen as a punishment to the careless contributor who didn’t secure his rights in advance.
In this effort, the applicable standard should be close to what the Court established in Aalmuhammed v. Lee. That is to say that in order to be considered as a joint author, the contribution from an individual must be:
(i) copyrightable in itself, that is to say that his or her contribution could merit exclusive rights if fixated or extracted from the final work, like the drawings that accompany a children’s book;
(2) must be done with the full intent merge his or her contributions into inseparable or interdependent parts of the unitary whole of the final work, like the music score of a movie or the choreography of a musical, and the party should be able to produce proofs of that like communications and drafts where that intent is reflected;
(3) the contributor must exercise certain degree of control over the final product, like the way on which a singer can make creative choices over a song with multiple composers and not in the way a lightning or stage technician makes certain choices in a movie shooting.
In an ideal world, disputes over joint authorship should be reduced as much as possible because individuals would rely on contracts and ex ante agreements before engaging in any kind of creative collaboration. Outside of that ideal world, the role of Law should be to “anticipate” the most usual scenarios of collaboration and assign rights to the best of the legislator’s knowledge to assure frictionless marketplace of creativity and science. This presumption will obviously fail the capture the full range of relationships of collaboration that exist in the modern world. However, failing to provide a strict standard that precludes as much as possible litigation and legal challenges would open a much darker scenario, on which no one wants to collaborate with anyone.
 Michael B. Landau, Joint Works Under United States Copyright Law: Judicial Legislation Through Statutory Misinterpretation, 54 IDEA: The Intellectual Property Law Review, 157, 211 (2014).
 Paul Goldstein & P. Bernt Hugenholtz, International Copyright: Principles, Law, and Practice 244 (2nd ed. 2010).