One other situation should be noted, in which the labor of several creators is combined to produce a single work, which work is owned solely by one person. Where a work is created by a number of employees for their employer, the employer, whether individual or corporate, is deemed to be the "author" 2 and is the sole owner of the work. A good example is a motion picture for which several employees of the producing company create the script, music, and other components that are merged to make the motion picture. The producing company, as their employer, is deemed the "author" and is thus eligible to become the sole owner of the copyright in the motion picture.3 Other examples are newspapers, magazines, or encyclopedias for which the component articles are written by staff writers and editors in the employ of the publisher, the latter being deemed the "author," thus becoming the sole owner of the copyright. These, of course, are not instances of joint ownership. Questions regarding the concept of the employer's ownership of works made by his employees are beyond the scope of this study.5

The first question to be considered in this study is the preliminary one as to what constitutes a "joint work." In any particular case, have two authors created a single "joint work" so as to make them joint owners of the one combined work, or have they created two separate works, each of which is owned solely by its author?

Aside from works of joint authorship, there are various situations in which a work of a single author, or one owned initially by a single owner, becomes the property of two or more joint owners. (1) A sole author or owner of a work may assign an undivided share of his rights, so that he and his assignee become joint owners of those rights.' (2) A sole author or owner may assign his rights entirely to two or more persons jointly, those persons then becoming joint owners. (3) Upon the death of an author or owner, two or more persons may acquire his rights jointly by will or inheritance. (4) Under section 24

217 U.S.C. § 26.

For example, a composer who is hired by a film studio to create music for a motion picture is not con. sidered to be a joint author of the resulting film. As put by one authority:

"The device by which this nullification is usually accomplished is the employment contract, the document which typically governs the relationship between the film composer and the producer. Besides obliging the composer to render all manner of musical services which may be required, including conducting, this instrument virtually effaces the composer as an independent creator, and, in the eyes of Anglo-Saxon law, relegates him to the rank of the hired worker or employee. As such, his divorcement from copyright is complete, since the Copyright Law accords him no legal identification with or ownership in his production, the musical score. Indeed, the copyright ownership throughout the period of protection-the original term of twenty-eight years, as well as a renewal term of an additional twenty-eight years-is vested exclusively in the employer."

Zissu, The Copyright Dilemma of the Screen Composer, in 1 HOLLYWOOD QUARTERLY 317 (April 1946). If the author of a contribution to a periodical is an employee of the company publishing the periodical, then the publisher, as employer for hire can be said to be the author. If the contribution is written by a freelance author, it is the trade custom for such authors to assign their literary property rights to the publication, which is authorized to obtain copyright for the article under its blanket copyright of the periodical. The publisher will generally, upon request, reassign to the author all rights not inconsistent with its interests. See Wasserstrom, The Copyrighting of Contributions to Composite Works, 31 NOTRE DAME LAWYER 381, 401 (May 1956). A searching analysis of the entire relationship between authors and periodical publishers may be found in Henn, "Magazine Rights"-A Division of Indivisible Copyright, in 40 CORNELL L.Q. 411-474 (Spring 1955). The case of Arthur D. Morse v. Sidney Fields et al., 127 F. Supp. 63 (S.D.N.Y., 1954) is illustrative of the general problem.

Works Made For Hire and on Commission and their ownership are the subject of Study No. 13, by Borge Varmer, in the present committee print.

Pp. 89-92, infra. For an excellent treatment of this problem as well as those referred to in footnote 10 infra, see: Kupferman, Copyright-Co-Owners, 19 ST. JOHN'S REV. 1-16 (April 1945); Rosengart, Principles of Co-Authorship in American, Comparative and International Copyright Law, 25 SO. CAL. L. REV. 247-288 (April 1952); and Taubman, Joint Authorship and Co-Ownership in American Copyright Law, 31 N.Y.U. L. REV. 1246-1261 (Nov. 1956).

7 An example of this type of situation of current interest in the music field relates to what is known in the trade as "Splitsville". This term refers to the "splitting" of a copyright between a publisher and a recording company, a recording artist or others. From an economic point of view, if a song becomes a “hit” a share of the copyright may be more remunerative than a flat royalty or fee, especially when it is considered that foreign earnings of the composition are included in the copyright owner's share. For an interesting story concerning "Splitsville", see THE BILLBOARD, April 28, 1958, p. 5.

of the present copyright law 8 when the author of a work is deceased, the renewal copyright may be owned jointly by his widow and children, or by several heirs. There may also be other transactions resulting in joint ownership.

Given a case of joint ownership of a work, a number of questions arise with respect to the rights and obligations of the coowners among themselves and in relation to third persons. May one coowner use the work (in any manner that would infringe the copyright if such use were made by an unauthorized person) without the assent of the other coowner? May one coowner license a third person to use the work without the concurrence of the other coowner? Is such a license granted by one coowner binding on the other? If one coowner derives revenue from his use of the work, or from licensing its use, is he obliged to share the revenue with the other coowner? These are the second set of questions to be considered in this study.10

The present copyright statute " does not deal with either the first question as to what constitutes a work of joint authorship, or the second set of questions as to the incidents of joint ownership. In fact, the statute does not mention joint authorship or joint ownership, but speaks of "the author" 12 of a work or "the proprietor" 13 of a copyright without reference to the possibility that there may be more than one author or proprietor of a single work. Likewise, neither in the hearings nor in the report 15 accompanying the bill that became the copyright law of 1909, does one find a reference to the problems of joint authorship or joint ownership. These various questions have, however, arisen in litigation and a body of case law has been developed by the courts in decisions handed down before and since the enactment in 1909 of the Copyright Act, which, with some amendments, is the present copyright statute.

14

II. JUDICIAL DEVELOPMENT OF THE CONCEPT OF JOINT AUTHORSHIP

1. GENERAL SUMMARY

With regard to what constitutes a work of joint authorship, the question has arisen most frequently in cases concerning musical works where the music was composed by one author and the lyrics were written by another. Traditionally, where the composer and lyricist worked together for the purpose of creating the music and lyrics in combination, the resulting combination was held to be a single joint work of the two authors.16 Even though the two authors performed their separate labors apart from each other and at different times, as long as they intended to have the music and lyrics combined into one

Title 17 U.S.C.

De Sylva v. Ballentine, 351 U.S. 570 (1956). In that case the Supreme Court held that the renewal copyright was owned jointly by the widow and the one child of the deceased composer. An unsettled question concerns how the renewal copyright is to be apportioned among the widow and children when there is more than one child.

10 Pp. 92-101, infra.

11 Title 17, U.S.C.

12 E.g. 17 U.S.C. § 4.

13 E.g. 17 U.S.C. § 9.

14 Arguments Before the Committees on Patents of the Senate and House of Representatives, Conjointly, on S. 6390 and H.R. 19853, June and December 1906; Hearings Before the Committees on Patents of the Senate and House of Representatives on Pending Bills to Amend and Consolidate the Acts Respecting Copyright, March 26, 27, 28, 1908.

is H.R. REP. NO. 2222, 60th Cong., 2d Sess.

1 Levy v. Rutley, L.R. 6 C.P. 523 (1871).

whole, the combination was held to be a single joint work." In a recent case, however, the court went much further: where lyrics were written some years later than the music which had previously been published as an instrumental piece, and even though the lyrics were written at the behest of an assignee of the composer rather than of the composer himself, the music and lyrics were held to be a single joint work, with the result that the two owners of the respective renewal copyrights in the music and the lyrics were held to be joint owners of both.18 The doctrine of this last case, as it pertains to later additions or revisions of a preexisting work, could have far-reaching consequences, as will be noted below.

2. REVIEW OF THE CASES

In view of the omission from the 1909 copyright law of any reference to joint authorship, it is no wonder that when a case arose in 1915 involving a dispute between several persons who had contributed to a musical operetta, 19 Judge Hand found it necessary to say:

I have been able to find, strangely, little law regarding the rights of joint authors of books or dramatic compositions. The only case in the books in which the matter seems to have been discussed is Levy v. Rutley.

Since that English decision is the origin of our present joint authorship doctrine, and so far as is known, contains the first definition of joint authorship,20 the following language therefrom is worth noting:

If two persons undertake jointly to write a play, agreeing on the general outline and design and sharing the labor of working it out, each would be contributing to the whole production, and they might be said to be joint authors of it; but to constitute joint authorship there must be a common design,21

The ingredients of joint authorship enumerated in this case are collaboration and a common purpose. Joint authorship occurs when two or more authors intend by their combined efforts to create a unitary work and in pursuit of that intent, work closely in collaboration. In the Maurel v. Smith case 22 this approach was applied to the factual situation where A wrote a scenario for a comic opera, B the libretto, and C the lyrics. Although A's scenario was written first, the court held A to be joint author with B and C with all the rights and obligations which arise from such an undertaking. The common design was found from the fact that all three agreed to contribute to a single work intended for operatic performance. B's use of A's scenario made it easy for the court to find collaboration between these two. Although C's lyrics did not necessarily have any relation to the plot nor did they bear upon A's scenario, the court held that the lyrics were intended to be united with dialogue and plot and music into one composition, and in their presentation the whole was single. One who contributes to such a joint production does not retain any separate ownership in his contribution, but it merges into

17 Edw. B. Marks Music Corp. v. Jerry Vogel Music Co., Inc., 42 F. Supp. 859 (S.D.N.Y. 1942).

18 Shapiro, Bernstein & Co., Inc. v. Jerry Vogel Music Co., Inc., 221 F. 2d 569 (2d Cir., 1955) on rehearing, 223 F.2d 252.

19 Maurel v. Smith, 220 F. 195 (S.D.N.Y. 1915), aff'd, 271 F. 211 (2d Cir., 1921).

20 So said Judge Learned Hand in Edw. B. Marks Music Corp. v. Jerry Vogel Music Co., Inc., 140 F. 2d 266 (2d Cir., 1944), at 267.

21 See note 16 supra at 529.

2 See note 19 supra.

the whole. The Court of Appeals affirmed the decision, and added that in a joint cooperation

It is not essential that the execution of the work should be equally divided; as long as the general design and structure was agreed upon, the parties may divide their parts and work separately.25

In a situation where a libretto for a comic opera was written, and then subsequently composers were hired to write the music, the court found that there was no collaboration between the librettist and the composers, and so denied a claim of the composer of the music in the entire production.24 The court relied to some extent on the fact that copyright was secured separately in the vocal score of the operetta, to show that there was no unified whole, but merely two componentslibretto and music-which were separable.

In a subsequent case, the court denied to the widow of an author of text matter any right in illustrations which were added to the book in an edition published 15 years after the date of the original edition.25 Judge Hand, commenting upon this decision in a later case,26 thought there was no doubt that the author of the text was not a joint author of the illustrations added 15 years later, for, as he expressed it, "there was no change in the work." Presumably, Judge Hand considered that no joint authorship existed when a preexisting work was revised by the addition of some new material, of a separate and distinct nature, by a person other than the original author. In this case, clearly, there was no collaboration.

It is to be noted that in the Maurel v. Smith case, the collaboration between the multiple authors was coincident in point of time. The question arises as to the effect on the doctrine where the collaboration is between persons who do not know each other, and is removed in point of time. Such a case arose some years later,27 and the court found that physical propinquity or personal acquaintance with the other persons performing work on the combined composition, was not necessary, so long as all persons knew that their effort was to result in a combined work. Likewise, the fact that the authors labored separately in point of time was of no consequence.

The concept of common design and collaboration was given a broader meaning in a later case. Two persons collaborated in creating an unpublished copyrighted musical composition, one composing the music, the other the lyrics. During the following year, the composer of the music offered the song for sale to a publisher, who did not like the lyrics. With the composer's consent, the publisher hired another to write new lyrics, and the resulting published composition was copyrighted. The court held that the published composition was a "new work" and that the composer of the pre-existing music was a joint author with the newly hired lyric writer.28 It may be open to question whether there are collaboration and common design when a preexisting work is adapted in such fashion. But at least the composer had agreed to have his previously unpublished music combined and

Ibid., p. 215 of 2d Cir. opinion.

Herbert v. Fields, 152 N.Y. Supp. 487 (Sup. Ct. Spec. Term, 1915).

25 Harris v. Coca Cola Co., 73 F. 2d 370 (5th Cir. 1934). Certiorari denied, 294 U.S. 709 (1935).

25 See note 20 supra.

See note 17 supra.

Shapiro, Bernstein & Co., Inc. v. Jerry Vogel Music Co., Inc., 161 F. 2d 406 (2d Cir. 1946), the so-called "Melancholy Baby" case.

published with the new lyrics. Although the question was not decided in that case, one may theorize that if this concept is valid, and since the music and first lyrics were a joint work, the writer of the lyrics in the earlier unpublished composition, being a joint author of that work, would also become a joint author in the later published version, which conclusion seems to be a reductio ad absurdum.

A further extension of the joint author concept was spelled out in the so-called 12th Street Rag case, 29 a few years later. A musical composition, without words, had been composed in 1914. Two years later the composer parted with all his rights in the work to a music publisher. In 1918, approximately 4 years after the work had been composed, the publisher, i.e., copyright owner, caused some lyrics to be written for the composition. A dispute arose over the ownership of the renewal rights. In the lower court it was held that the words and music together constituted a composite work, not a joint work; and that the renewal rights of the lyricist covered only the lyrics. The Court of Appeals reversed, and held the work to be a joint work, with the composer and lyricist sharing equally in the renewal copyright. The Court of Appeals relied on the fact that the publisher, as copyright owner of the music, intended that the music and lyrics be performed together as a single work, and that the lyrics were worthless without the music. On rehearing, however, the court recognized that the composer's assignee alone held copyright in the music when it was used without the lyrics.

On the basis of this decision, no longer does there seem to be required a preconcerted common design or any active collaboration. It is now sufficient if there be any "fusion of effort" in the creation of a revision, adaptation or modification of any existing work. The authors of the original work are not required to have any knowledge of the modification, nor do they have to take part in it. Any action on the part of their transferees which utilizes the preexisting work in the creation of a new version thereof is sufficient to make the original creators joint authors with those who later revise their work. Not only does this extension of the joint author concept do violence to the renewal policy of the law, but it would appear to extend, for an indefinite period, the control of the original author over any subsequent revision of his work.

III. JUDICIAL DEVELOPMENT OF INCIDENTS OF JOINT OWNERSHIP

1. GENERAL SUMMARY

In dealing with the incidents of the joint ownership of copyrights, the courts historically resorted to an anology which they had previously utilized in cases involving jointly owned patents. The joint owners of a patent had been regarded as being in the same relationship to each other as tenants in common of real property,30 and the cases involving jointly owned copyrights extended this analogy to them.31

29 See note 18 supra.

30 Dunham v. Indianapolis & St. L.R. Co., 8 Fed. Cas. 44, No. 4151 (C.C.N.D. Ill. 1876); Clum v. Brewer, 5 Fed. Cas. 1097, No. 2309 (C.C.D. Mass. 1855).

31 E.g., Carter v. Bailey, 64 Me. 458 (S.J.C. 1874); Piantadosi v. Loew's Inc. et al., 137 F. 2d. 534 (9th Cir. 1943).