17.7 COPYRIGHT INTERESTS—JOINT AUTHORS (17 U.S.C. §§ 101, 201(a))
A copyright owner is entitled to exclude others from copying a joint work. A joint work is a work prepared by two or more authors. At the time of the joint work’s creation, a joint work must have two or more authors, and
1. each author must have made a substantial and valuable contribution to the work;
2. each author must have intended that their contributions be merged into inseparable or interdependent parts of a unitary whole; and
3. each author must have contributed material to the joint work which could have been independently copyrighted.
Each author of a joint work shares an undivided interest in the entire joint work. A copyright owner in a joint work may enforce the right to exclude others in an action for copyright infringement.
In deciding whether parties intended their contributions to be merged [in element 2, above], you may consider whether they signed a written agreement stating that the copyright in the work is to be jointly owned. If there is no such agreement, you may consider whether:
a. both parties exercised control over the work. This is the most important factor;
b. both parties’ actions showed they shared the intent to be co-authors when they were creating the work, for instance by publicly stating that the work was their shared project; and
c. the audience-appeal of the work depends on the contribution of each party so that the share of each party’s contribution in the work’s success cannot be appraised.
In making a substantial and valuable contribution to a work, each author’s contribution to the joint work need not be equal.
A written agreement stating the copyright in the work is to be jointly owned may show that each author of a joint work intended that their contribution be merged into inseparable or interdependent parts of a unitary whole.
In contributing material to the joint work that could have been independently copyrighted, each author’s contribution should be entitled to copyright protection without the contributions by the other author[s].
Whether a work is a joint work, rendering a party a joint author, is often a question of fact for the jury to determine. See Goodman v. Lee, 988 F.2d 619, 625 (5th Cir.1993) (co-authorship determination made by jury at trial). This instruction may be inappropriate for use in a case involving joint authorship under the 1909 Copyright Act.
See 17 U.S.C. §§ 101, 106, 501. The definition of joint work under the 1976 Copyright Act is found at 17 U.S.C. § 201(a).
Elements reflected in this instruction are drawn from: Ashton-Tate Corp. v. Ross, 916 F.2d 516, 521 (9th Cir.1990) ("Even though this issue is not completely settled in the case law, our circuit holds that joint authorship requires each author to make an independently copyrightable contribution [to the joint work]."); and S.O.S., Inc. v. Payday, Inc., 886 F.2d 1081, 1087 (9th Cir.1989) (to be a joint author "one must supply more than mere direction or ideas: one must ‘translate[ ] an idea into a fixed, tangible expression entitled to copyright protection.’") (quoting Community for Creative Non–Violence v. Reid, 490 U.S. 730, 737 (1989)).
The elements suggested in the paragraph supplementing the second element of the instruction are derived from Aalmuhammed v. Lee, 202 F.3d 1227, 1234–35 (9th Cir.2000) (noting the above as "several factors [that] suggest themselves as among the criteria for joint authorship, in the absence of contract").
A work can be jointly owned by assignment of an undivided interest, such as transfer of copyright from sole author to two or more transferees. This simply renders the work jointly owned, but does not make it a joint work, for which this instruction is appropriate. See Oddo v. Ries, 743 F.2d 630, 633 (9th Cir.1984).