Media & Entertainment Law

Asked and Answered: When are friends and family co-authors?

By Gordon Firemark

Q: Writers are encouraged to share their work with friends and family prior to submitting to publishing or film industry professionals. At what point does a family member’s or friend’s contribution considered sufficient to be considered collaboration? In other words, if a family member suggests changes that results in a substantial re-write, is that sufficient to warrant inclusion as co-author or collaborator? Should authors have an agreement with family members or friends who comment on their work to specify what types of contributions will result in a copyright and compensation arrangement?

A: In order for a work to become a “joint work” under copyright law, there are two elements that must be satisfied.  First, the contribution of each purported author must be independently copyrightable, and second, the parties (all of them) must have manifested the intent that the results and proceeds of their contributions would be a work of joint authorship.

In the situation where a friend, family member, agent, or even a producer suggests changes, offers ideas, or helps shape a concept, the test fails on the first prong… ideas, suggestions, and concepts are not copyrightable subject matter.  Similarly if the material isn’t “fixed” (i.e., written down or otherwise recorded in some medium), it is not copyrightable.

The second prong of the test really depends on the factual situation.  Again, where a friend makes suggestions, or a family member offers an idea, it’s unlikely that any of the parties have the intent to be treated as co-authors or collaborators.  In most of the cases where joint authorship is found, the required intent comes from shared credit.

So, once you agree to give a shared or courtesy credit to someone who offers input, you open the door to the possibility that you’ll have to share ownership of the material, and the money that it generates.

Of course, the best practice would be either to NOT accept or incorporate input from friends and family.  The next best approach is to very clearly establish that it is and will remain YOUR script, and that you won’t be sharing any of the proceeds from its exploitation.

This is intended as general information only and does not establish an attorney-client relationship. It is not a substitute for a private, independent consultation with an attorney selected to advise you after a full investigation of the facts and law relevant to your matter. We will not be responsible for readers? detrimental reliance upon the information appearing in this feature.

Full post as published by Entertainment Law Update on July 09, 2010 (boomark / email).