Any time that you create a copyrightable work with someone else – whether it’s co-writing a song, a play, a book or a treatment for a television series – you and your co-creators should sign a collaboration agreement. Without a collaboration agreement, the default ownership rules for joint works apply.
Collaboration agreements are agreements among co-creators that cover several important points:
(1) Ownership. Who owns the co-authored work, and in what percentage ownership does each co-creator possess? In other words, who owns the copyright such that they can, among other things, license the work to others, or prepare derivative works based on the original co-authored work? The co-authored work should be registered with the Copyright Office and the collaboration agreement can modify the default rules for each co-author’s ownership interest.
(2) Right/Permission to Exploit. Who can exploit (e.g., sell or distribute) the co-authored work? For example, if the co-authored work is a song, can/will all the songwriters list the song on Spotify or sell on Apple Music? Does each contributing songwriter license (“administer”) only his share, or may one writer handle the licensing for all of them? Alternatively, will a third party be authorized to do this on behalf of all the songwriters?
(3) Royalties. What percentage of royalties is each co-author entitled to when the work is sold or licensed? Often (but not always) this percentage is the same as that for the copyright ownership share. Additionally, if there were expenses in creating the work that one of the co-authors paid, a recoupment of the expenses to that co-author can be addressed. For example, if one of the co-authors of a song paid $100 for the studio time for all songwriters, then perhaps that songwriter would be paid back their $100 first from any exploitation or money made before any royalties are split. Further, how often will royalties be paid (e.g., quarterly; bi-annually)? In what form will payment be sent? Will the payment include a written statement? All of this can be addressed and specifically clarified in a collaboration agreement.
(4) Credit. How will each co-author be credited (or perhaps not credited) on distributions of the work? For example, establishing who will be credited is particularly important when a book is co-authored by a ghostwriter.
(5) Final Approval. If the collaboration agreement is being entered into prior to the creation of the work (this is often the case with larger-budget works like television shows, films and budgeted music albums), the agreement should address which of the co-authors has final approval of the work (i.e., which of the raw footage, or “takes,” shall constitute the final version of the work).
If the collaborators are songwriters, each of the preceding five points can be addressed in a “split sheet.”
If you’re working with co-creators, you should enter a collaboration agreement as soon as possible. This will avoid needless and expensive disputes down the line.
Often, budget concerns dictate when to enter a collaboration agreement. If a work is costly to create, the co-authors will more likely think in advance to have a written agreement relating to these points. If a work is inexpensive to create, and particularly when the creation is unplanned, collaboration agreements tend not to exist prior to a work’s creation. That being said, if multiple authors created a work, and it is of some actual or potential value, it is almost always best for the authors to enter into a collaboration agreement.
Experienced intellectual property and entertainment attorneys at Romano Law are ready to help. Contact us to speak with a member of our team.
[This blog post has been updated from a previous version, published August 9, 2019]