Sandra Richmond is a partner in the Toronto law firm of McMillan Binch LLP and a member of the firm’s KNOWlaw Group. This article was written with the assistance of Melissa McBean.

You’ve just completed a script and have asked a friend to take a look at it and give you some suggestions. Are you getting advice – or a coauthor?

Many creative works are the result of collaboration with, and suggestions from, other people. But what kind of contribution leads to ownership of – and copyright in – the artistic effort? And what rights does that give you?

Who is a coauthor?

The Copyright Act defines a work of joint authorship as ‘a work produced by the collaboration of two or more authors in which the contribution of one author is not distinct from the contribution of the other author or authors.’

The test for determining whether someone is a coauthor was set out by the court when Darryl Neudorf sued singer/songwriter Sara McLachlan for copyright infringement.

Neudorf claimed among other things that he was a joint author of four songs on McLachlan’s debut album. McLachlan claimed that while he’d been hired to help her on the album, that assistance was not enough to be considered authorship.

The court set out the following three-part test for determining a claim of joint authorship:

* Did each party contribute significant original expression to the work?

* Did each party intend that the contribution be merged into a unitary whole?

* Did each party intend the other to be a joint author of the work?

The court noted that a contribution can be significant even if it’s small relative to the work as a whole. Coauthors can make unequal contributions to the final work.

But the contribution must be something that would itself be protected by copyright as something that is original and an expression, not simply an idea.

For example, the court found that for three of the songs, Neudorf had merely given suggestions for improvement but had not created an expressive work, so he wasn’t a coauthor of those songs.

For the fourth song, the court found that Neudorf met the first two parts of the test, but not the third – there was no evidence that the two parties intended joint authorship. For example, the parties had not discussed sharing the songwriting credits and Neudorf had brought his claim quite some time after the album – where he wasn’t credited as a songwriter – was released.

Rights of coauthors

If you’re a coauthor, you will ‘co-own’ the work – and the copyright in it – with your fellow coauthors.

Coauthors aren’t the only ones who might be co-owners of copyright. For example, heirs to an estate that includes a copyright work may become co-owners of the copyright. Or an author may transfer copyright to more than one person.

The Copyright Act doesn’t address what rights co-owners have, so they’re subject to provincial law regarding property.

Owners in common

Co-owners are usually ‘owners in common.’ An owner in common holds an undivided share of the copyright, which he or she can leave to heirs or transfer without a co-owner’s consent.

Unless they’ve agreed otherwise, coauthors in common own equal shares of the copyright in the work they created, no matter how much each contributed to the work. So even if one person’s contribution makes up 20% of the final work and another person’s contribution makes up 80%, they each own 50% of the copyright. Of course, this can be readily overridden by setting out the respective shares in a contract.

Joint owners

If there are special circumstances, or if the parties have agreed, they may be ‘joint owners’ instead of owners in common.

Joint owners each own the whole copyright and can’t transfer it without the consent of all other co-owners. On the death of a joint owner, his or her rights are extinguished and the surviving co-owner(s) retain all the copyright under a right of survivorship.

Exploiting the collaborative work

Typically, Canadian courts assume that co-ownership is in common in equal shares unless there’s some reason to believe that’s not the case. And while the Copyright Act doesn’t address whether a co-owner can exploit the collaborative work (for example, by licensing rights in it) without consent from the other co-owners, it would be wise to obtain consent.

In the U.K., co-owners can restrain each other from using the collaborative work, so each must obtain permission from the other co-owners before exploiting the copyright. If they don’t, the co-owners can claim infringement and sue for damages or profits.

In the U.S., a co-owner can independently exploit the work without consent from or notice to the other owners, but only through a non-exclusive licence (not through an exclusive licence or outright sale or assignment of the copyright). And he or she must share the proceeds with his or her co-owners.

It’s important to note, too, that in Canada, the term of copyright in a work of joint authorship is based on the life of the last author to die. That means the work doesn’t go into the public domain until 50 years after the end of the year in which the surviving author died. If one of the coauthors is a national of a country other than Canada, the term may be different.

Put it in writing

If you plan on working with someone else, make your first collaborative effort a written agreement about your rights. Although it may be awkward to discuss these issues before you’ve even started working together, it’ll be easier and less costly to deal with them before a disagreement arises.

Depending on whether your relationship is long-term or project-specific, your agreement might include matters such as:

* Whether ownership will be in common or joint.

* If ownership is in common, how the copyright will be shared and whether it varies depending on each party’s contribution.

* Credits.

* Who controls the exploitation of the work.

* How you’ll share revenues from exploiting the work, particularly if contributions aren’t equal.

* How you’ll deal with pre-existing material of your own that might be used in the final collaborative work.

If you start out on one basis but the relationship changes, change the agreement to reflect that. For example, if you originally agreed to provide suggestions but now find yourself actually writing a large part of the material, you may want to amend your contract.

You should also consider having written agreements with individuals who may not qualify as coauthors but who make important contributions to the work, to avoid future disputes.

Looking after these issues before you start working with someone else will help you make sure that, for your work, two heads are better than one.

(This article contains general comments only. It is not intended to be exhaustive and should not be considered as advice in any particular situation.)

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