What Is a Joint Work in Copyright Law?
We should all know by now that songs, movies, and books are copyrighted works. Every time we see a movie, for example, we are reminded of this by the “FBI Warning” stating that federal law provides severe civil and criminal penalties for the unauthorized reproduction of copyrighted motion pictures. And copyright owners take this seriously. You may have heard of a recent case where Capital Records and other plaintiffs were awarded $222,000 in statutory damages against a single defendant named Jammie Thomas-Rasset who made twenty-four songs available for others to download on the Internet. But who gets those damages?
With one copyright owner, logic would dictate that he would get all of the damages. But who really owns the copyright when more than one person is involved in making a copyrightable work. To explore this, let’s take a look at one of the songs that Thomas-Rasset infringed – Def Leppard’s “Pour Some Sugar on Me”.
It turns out that many people were associated with creating and recording this iconic song. The writers were Steve Clark (co-lead guitarist), Phil Collen (co-lead guitarist), Joe Elliott (lead vocalist), Robert John “Mutt” Lange (who also produced the song), and Rick Savage (bassist). “Pour Some Sugar on Me” was a joint effort and likely a joint work for copyright purposes.
For a work to be a “joint work” there must be a copyrightable work (which includes musical works and sound recordings as per 17 USCA § 102), two or more authors, the authors must intend their contributions be merged into inseparable or interdependent parts of a unitary whole, and each author must make an independently copyrightable contribution to the work. Aalmuhammed v. Lee, 202 F.3d 1227, 1231 (9th Cir. 2000); Ashton–Tate Corp. v. Ross, 916 F.2d 516, 521 (9th Cir.1990).
“Pour Some Sugar on Me” as a musical work and sound recording certainly is a copyrightable work, and was one of the highest rated songs of the 1980s. As already noted at least five people were involved in the creation of this song, so the “two or more” element is satisfied. When listening to the song, it is also apparent that the band members (and producer) intended that their individual contributions be merged into a unitary whole. When we hear the song, we don’t hear just the drums, the bass, the guitar, and the vocals individually and apart from one another. To hear it in such a way would be to not hear it at all. After all, the song only made dollars and cents by merging each musician’s talents and presenting them as a unitary whole to fans on a single record.
Of course, Def Leppard didn’t have to present their work this way and each writer could have done what is fairly common practice, i.e. copyright their own contributions. A good example of this is the “instrumental version,” i.e. the version having only the guitar to aid budding guitarists in learning riffs without the noise of the vocals or drums, or the version sans vocals for the karaoke enthusiasts. Because each member could have copyrighted his contribution, and because the other elements are likely met, “Pour Some Sugar on Me” would likely be considered a joint work.
Benefits and Pitfalls of Joint Works
Joint authors of registered joint works may avail themselves to the privileges of federal registration, including statutory damages for copyright infringement. Joint authors may also make derivative works (such as “Sugar” the musical) as well as take advantage of all of the other rights outlined in 17 USCA § 106. Moreover, joint authors cannot sue each other for copyright infringement. See Morrill v. Smashing Pumpkins, 157 F. Supp. 2d 1120, 1126 (C.D. Cal. 2001).
The latter may also be considered a pitfall, depending on what a coauthor does. Say the Def Leppard guitarist did want to create the “Sugar” musical without the help of his other band members, but rather collaborate with an entirely new cast of people. He would be within his rights to create the musical, and license the original song to the new production company. The caveat is that while each co-owner has an independent right to use or license the use of the copyright, each co-owner must also account to other co-owners for any profits he earns from licensing or use of the copyright. See Oddo v Reis, 743 F.2d 630, 633 (9th Cir. 2984) (citations omitted). If “Sugar” turned out to be a bigger hit than the song ever was, our guitarist may end up owing a big chunk of change to his original band members.
(Note that the above discussion is hypothetical and is not meant to be used as legal advice. For specific legal advice on a copyright joint work issue, please contact one of our copyright attorneys).