Joint work is work that is made by more than one creator. A creation that is deemed a joint work holds significant legal implications because all creators can claim ownership rights over the creation. Indeed, creators of joint works hold undivided interests in the creation despite any differences in each creator's contribution. Therefore, each creator is a "co-owner" and holds authority to use and license the joint work so long as other creators receive a portion of the profits that result in the work's use.
When deciding whether a creation is a joint work, courts cite Section 101 of the Copyright Act, which defines a joint work as: "a work prepared by two or more authors with the intention that their contributions be merged into inseparable or interdependent parts of a unitary whole." For example, a song, with its interdependent lyrics and music, is a joint work. Still, this standard has been difficult to apply where individual contributions are less clear-cut than that of a song. As a result, courts have devised further tests to determine how intent is manifested and who constitutes an "author".
For example, the Seventh Circuit follows the "copyrightable" test to determine whether a contributor to a work qualifies as an author for the purposes of the Copyright Act's definition. Under this test, courts have explained that an author must contribute more than mere direction or ideas, and that the element of creation, or translating ideas into a fixed and tangible expression entitled to copyright protection, is what grants a contributor the title of author.
In the Ninth Circuit, courts have explained that whether a contributor is a co-author of a joint work is a factual inquiry that considers elements such as control and intent. In this context, intent can be determined by decision making authority and how the parties arrange themselves. Lastly, a contributor will likely not be deemed a co-author of a joint work if it is determined that their contributions were made for hire or that their rights to the work had been assigned.
[Last updated in April of 2022 by the Wex Definitions Team]
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