effort" theory by its holding that a lyricist who at the behest of the composer's assignee produced lyrics for a previously created musical composition, became, for renewal purposes, a joint author with the composer, whose labor in producing the music had occurred a number of years prior to the efforts of the lyricist. The lyricist and his assignee thereby became entitled to exploit words and music together.

If the view of the 12th Street Rag case is followed, the previously existing concept of several creators pooling their efforts to produce a single work, and sharing in whatever commercial success might ultimately be achieved, no longer seems a sine qua non. A fusion by the copyright owner (though not the author) of a preexisting work with new matter by another author is, under this doctrine, sufficient to establish the status of "joint owners" in the combination of the preexisting work and new matter, without regard to any common collaboration of effort, or the pursuance of a common design. A logical result of this concept may be that the heirs or assignees of an author whose work is now in the public domain are considered to be joint owners with one who revised the original work just prior to its lapse of protection. This result fails to take cognizance of the provisions of the copyright law which specify that such a revised work is a "new work," and that protection is available only as to the "new" portion of the work. If this "new work" concept is valid, it is difficult to conceive how the result could be justified that permits the heirs or assignees of the author of the original work, which is in the public domain, to claim to be joint owners of the revised portion which they did not assist in creating. Likewise, it is difficult to see why the author of the new matter should be a joint owner of the original work.

2. INCIDENTS OF JOINT OWNERSHIP

Since the law of real property had long recognized the concept of common ownership of land, the courts found a readymade analogy. The realty concept of tenancy-in-common was applied to copyright cases with the general result that one coowner was held to possess the right to utilize the jointly owned property in any manner as he pleased so long as such use did not amount to a destruction of the res. Although when this concept was originally introduced into copyright case law, the other coowners were held to have no right to obtain an accounting of the proceeds received by the coowner who made use of the work, it is generally held today that such accounting is obtainable.

The English doctrine, on the contrary, considered that while the copyright property right might be shared by several owners, it was indivisible in the exercise of the right of ownership. The English coowner, therefore, could not exercise his right of ownership without the consent of the other coowners.

A sound basis exists for the adoption of either concept. The U.S. doctrine in effect favors commercial exploitation of the property right by permitting one coowner to use the property without the knowledge or consent of the remaining owners, subject to the duty of accounting over to his coowners for their share of the profits.

The relatively recent development of the accounting principle provided a brake upon the unbridled ambition of a coowner who might be inclined to disregard the rights of his colleagues and at the same

time served a useful purpose in permitting an energetic coowner the right to profit from his original labor in creating the work or, if he were a purchaser for value, afforded him an opportunity for realizing on his investment whether or not his other coowners joined with him. One defect in this approach, however, is that it permits coowners to compete against each other, with the normal result that both may suffer financially. This is illustrated in the case of Jerry Vogel v. Miller Music Co.,118 wherein two coowners attempted separately to license their musical composition at two different fees to the same movie producer with the not unexpected result that the producer purchased the license at the lower of the two offers.

The philosophic basis of the English doctrine apparently rests upon the premise that the right of a coowner to be secure in his ownership of a share of the whole is more important than facilitating the commercial exploitation of the work by any one coowner. It is therefore desirable, according to that philosophy, to avoid placing a nonassenting coowner at the mercy of his more energetic colleagues. This concept requires what might be termed a monolithic unity of agreement among the coowners before the property right can be exploited. The U.S. concept has the advantage over its English counterpart that the coowner who possesses the ability to exploit the joint work can in fact seek to realize an income from his part ownership, whereas under the English doctrine, it is conceivable that in some cases the majority of the coowners may be penalized by the willful stubbornness of one of their colleagues. A determination of which concept is preferable rests at bottom upon which of the freedom-of-exploitation or the security-of-ownership philosophies is considered more desirable. VII. POSSIBLE APPROACHES TOWARD A REVISION PROGRAM

1. WHO ARE JOINT AUTHORS?

(a) Severability of contributions

In considering the question of whether and how the present copyright law may be modified to resolve the types of problems that have been referred to above, one might start with the premise that it is desirable to reduce, as far as possible, the frequency of the occurrence of situations in which a given work can be said to be a "joint work." For example, one possibility that suggests itself is to define a "joint work" as one produced by the collaboration of two or more authors in which the contribution of one author is not separable from the contribution of the other author or authors. The British Act of 1956 adopts this viewpoint. The significance of the definition is that if a given work contains separable contributions which are clearly distinguishable, then the work is not said to be a "joint work." Presumably, each of the separable portions is entitled to its separate copyright, and the use of all of the contributions together would necessarily require the assent of the owners of each separable portion. Under such a definition, it would seem that the words and music of a musical composition would constitute two separate copyrights, one for the lyrics and one for the music. While our courts have, under the present copyright law, ruled that a musical composition is a uni

118 See note 52 supra.

tary work, it appears that under such a definition as suggested above, the unitary nature of the composition would require reconsideration. It may be correct, from an esthetic viewpoint, to state that a musical composition is a unitary work, but is seems difficult to deny that the words and music are clearly distinguishable from each other and capable of separate use. So far as the question of authorship is concerned, it is easy to admit that one individual may contribute the words and another the music. In this sense, the composition is not unitary, and does in fact contain easily separable contributions.

The adoption of such an approach would in all likelihood serve to eliminate many of the problems that now exist. An examination of litigated court cases in this field reveals that the preponderant number are concerned with difficulties arising from the use of musical compositions, which would be greatly reduced under the suggested approach. During the first term of copyright, assuming the continuance of the renewal feature, it would not seem that any significant change in existing commercial practice would be called for. The result would be that the composer could exploit the music alone and the lyricist the words alone, but both would have to join in exploiting the music and words together. Customarily the composers and lyricists of a composition assign their rights to a publisher, who exploits the work and funnels the incoming royalties to them. The existence of two separate copyrights in a single composition would mean that both the lyricist and composer would assign their separate copyrights to the publisher instead of a single joint interest. The publisher thereafter for all practical purposes would be the copyright proprietor.

If the present renewal system is retained, some complications might arise at the time of renewal, when each contributor to the composition would be required to renew, or absent the author, his statutory successors or representatives. The publisher would then have to make certain that the renewal of each portion of the composition was assigned to him. In one respect, this might have a salutary effect, since it would act as a deterrent to a frequently occurring practice whereby a lyricist for example, assigns his renewal in the entire copyrighted composition to one publisher, and the composer assigns his renewal to another. Some of the present litigation results from the fact that under these circumstances, each publisher feels that he is entitled to use of the entire composition. Under the suggested approach, if a publisher wished to utilize the entire work, he would have to make certain that he obtained the renewals of all the separable portions, or would have to deal with the owner of each other portion.

Another possible source of difficulty under the present renewal system concerns the consequences where no renewal is made, for example, with respect to the music portion, and the publisher ends up with only the exclusive right to the lyrics.

If the new law did not contain a renewal provision, or if a simple extension of the term in favor of the owners were substituted for the present reversionary renewal provisions, these possible difficulties would not need to exist.

Including in the new law a definition of "joint work" as above suggested would not of course affect those types of situations where the resultant work of the coauthors was united into a single unitary work in which it was not possible to distinguish and separate the contributions of each. Existing legal principles would presumably continue to apply.

(b) Collaboration and common design

A second type of approach would involve the inclusion of a definition of "joint authorship" much in the same manner as the courts have developed the concept; namely, that it results from a collaboration of effort toward a common design, notwithstanding that the collaboration might not be coincident in point of time. This suggested approach might be considered unnecessary if it merely restated the present judicial concepts. Such a definition would be desirable, however, if it was thought proper to eliminate the doctrine of the 12th Street Rag case from existing law. The definition could make clear that collaboration of effort in a common design was the test, and thus rule out the "fusion of effort" theory of that case.

2. INCIDENTS OF COOWNERSHIP

The foregoing suggestions are concerned with defining what constitutes "joint authorship." We now turn to the broader question of the rights of coowners as between themselves and in relation to transferees.

Under the present law as established by court decisions, any one coowner may use or license the use of the work without the consent of the others, subject only to the restriction that such a use does not destroy the work; but he must account to the other coowners for their share of the proceeds. If this result is deemed appropriate, it may be unnecessary to restate these judge-made rules in the statute. On the other hand, statutory provisions would be necessary if the English rule were to be adopted; namely, that the consent of all coowners is required before the work can be utilized. Under that view, one coowner or his licensee or assignee who uses the work without the assent of the other coowners would be an infringer against whom the nonassenting coowners could proceed for injunctive relief and damages. Provision might also be made for a proceeding against the coowner who acted without the consent of the others, holding him liable for an accounting of profits, if any.

Under the English rule there might be instances where the use or exploitation of a jointly owned work might be blocked by the refusal of a single coowner to give his assent. If this rule were adopted, perhaps some consideration might be given to a provision which would enable the assenting coowners to proceed with the project when the nonassenting coowners' refusal is unreasonable. This might be done by a petition to a court.

VIII. SUMMARY OF QUESTIONS

1. Should a work of joint authorship (of which the joint authors are coowners) be defined in the statute? If so, should joint authorship be defined in terms of

(a) Inseparability of the contributions of the several authors? (b) Collaboration of the authors for the purpose of producing a single combined work?

(c) The combination into a unit of separately created works, regardless of their separability or of collaboration between the authors?

2. Should the statute provide for the rights of coowners to use or license the jointly owned work? If so

(a) Should any one coowner be able to use or license the work without the assent of the other coowners, with the obligation to account to the other coowners for their share of the proceeds?

(b) Should the consent of all the coowners be required for use or license of the work? If so, should some provision be made to allow use or license of the work by those coowners wishing to do so when another coowner's refusal is unreasonable?