Copyright and (Collaborative) Authorship: Who gets to be a joint author for the purpose of copyright?

For my final project, I wanted to discuss the idea of joint authorship in copyright law, and highlight a few works that underscore what I anticipate will become an increasingly pressing issue for creatives, especially writers, in the coming decades.[1]

Being an “author” has a certain level of cultural cachet, similar to how being an “inventor” on a patent (even if you only made a very minor contribution to the invention) can lend someone an air of credibility or legitimacy.[2] Copyright law’s conception of the author and authorship “came to revolve around the normative idea of the individual romantic genius, whose creative expression was worthy of protection against copying.”[3] Because the author of a work is (usually) the owner of the work’s copyright,[4] designation as an author of a work for copyright purposes can also be lucrative (both during the author’s lifetime and after it).

The concept of joint or collaborative authorship challenges the conception of authorship that much of copyright law was based on:

At its simplest, coauthorship refers to a collective, cooperative process of producing a work of original expression, wherein each contributing member (that is, each coauthor) makes a contribution to the work and is, as a result, accorded the designation of “author.” The designation offers more than just nominal value, since it also results in each coauthor obtaining an ownership interest in the copyright over the creative work, as a joint owner of the work. Coauthorship is thus of deep economic significance[.][5]

The Copyright Act defines a work of joint authorship as “a work produced by the collaboration of two or more authors in which the contribution of one author is not distinct from the contribution of the other author or authors”.[6] While “author” is not defined in the Copyright Act, courts have interpreted the word as indicating “the person who actually writes, draws or composes a work”[7] and “convey[ing] a sense of creativity and ingenuity”.[8] In other words, the author is more than “a mere scribe or amanuensis”.[9] An author is also not someone who “merely gives ideas to a person”,[10] but is “the person who finds expression for these suggestions in the [work].”[11]

Levy v Rutley, an English case from 1871, continues to be the leading authority on joint authorship in Canadian and English copyright law.[12] Levy sets out the following test for determining joint authorship:

First, the existence of a work of joint authorship is established by the facts and by the law, and is not based on the parties’ intentions. . . .

Second, the contributions of each of the parties need not be equal, though each must be substantial. . . .

Third, even if one contribution may be qualitatively and quantitatively inferior to the other, there must be a joint labour in carrying out a common design.[13]

The test enumerated under Levy – which does not require that authors intend to create a work of joint authorship – poses challenges for creatives, particularly for writers, who often discuss, edit, and revise their work with peers through writing groups or with editors. At what point do an editor’s changes to a draft, or a peer’s thoughts on how to develop a certain character cross the line into authorial expression that constitutes a substantial contribution to the work that they could be recognized (and remunerated) as a joint author for?

In Neudorf v Nettwek Productions Ltd, the British Columbia Supreme Court departed from Levy, and determined that “to satisfy the test for joint authorship a putative joint author must establish that he has made a contribution of significant original expression to the work at the time of its creation, and that he has done so pursuant to a common design (or, in other words, some form of shared intent).”[14] This approach is in line with American case law, which began interpreting the “common design” component of the joint authorship test from Levy as meaning that the co-authors had some level of agreement/cooperation, whether formal or subconscious, to collaborate on a work as joint authors, as early as the 1910s.[15] English and Canadian courts, in contrast, interpret “common design” a bit more broadly, meaning that parties “intended that their contributions be joined in furtherance of a common design”.[16] The approach in Neudorf was rejected by the Federal Court in Neugebauer v Labieniec, meaning that Levy is still the law in Canada.[17]

In 2019, the England and Wales Court of Appeal refined the concepts set out in Levy in Kogan v Martin.[18] The case revolved around the copyright for the screenplay to the 2016 film Florence Foster Jenkins, which starred Meryl Streep (as the titular character, a socialite and notoriously terrible opera singer) and Hugh Grant.[19] The film’s screenplay was initially credited solely to Nicholas Martin, a television screenwriter.[20] Martin’s ex-girlfriend Julia Kogan, a professional opera singer, conceived of the idea for the film, and Martin wrote the script’s first drafts while the two lived together from 2012 to 2014.[21] Martin applied to the Intellectual Property Enterprise Court (IPEC) for a declaration that he was the sole owner of the copyright to the screenplay, which was granted.[22] Martin said that he wrote every word of the script, whereas Kogan argued that they wrote together the script together, and would continuously bounce ideas off each other. Notably, Floyd LJ determined that

[a]uthors can collaborate to create a work in many different ways. For example, there may be joint authorship if one person creates the plot and the other writes the words, or if either or both of these types of labour is shared. . . . Joint authors must be authors, in the sense that they must have contributed a significant amount of skill which went into the creation of the work. Again, it is not correct to focus exclusively on who fixed the work in writing. The statutory concept of an author [in the UK] includes all those who created, selected or gathered together the detailed concepts or emotions which the words have fixed in writing.[23]

A new trial was granted, and in 2021 the IPEC ruled that Kogan was a 20% co-author based on her contributions to the film’s plot, characters, musicality, and the fact that she had the idea for the film.[24] The centrality of music to the film played a large role in Meade J’s finding that Kogan’s contributions were of “great importance to all the central characters . . . [that] suffuses the whole screenplay.”[25] Meade J noted that while Kogan and Martin both knew that they were working towards the creation of a screenplay, and that this constituted a common design “as to a general outline and a sharing of labour”, it was unlikely that Kogan and Martin would have “agreed at the time in terms that their intention was to create a work of joint authorship as such, not least given Mr Martin’s attitude to what he thinks of as ‘writing’”.[26]

In light of Levy, Neugebauer, and the ruling in Kogan (which, while a UK case, was based on a statute with the same definition of joint authorship as the Copyright Act), I’ve detailed two examples of works that have been subject to authorship controversies that exemplify some of the issues inherent to joint authorship: At what point have someone’s contributions to a work become so significant that they should be recognized as an author of a work? Should intention to collaborate matter? Should we limit the ability of individuals to claim co-authorship for a work they actually did not physically write? How should we define authorship, as the Copyright Act does not? Should the UK’s definition of an author as “the person by whom the arrangements necessary for the creation of the work are undertaken” be adopted?[27] Or should the (ostensibly more restrictive) understanding of an author as “the person who actually writes, draws or composes a work” be maintained?[28]

T. S. Eliot, Ezra Pound, and The Waste Land

 

 

T. S. Eliot’s The Waste Land is, along with James Joyce’s Ulysses, considered the foremost literary work of modernism. The poem’s dedication reads “to Ezra Pound: il miglor fabbro” – [to Ezra Pound, the greater craftsman]. Eliot’s first draft of The Waste Land (which was initially called He Do the Police in Different Voices[29]) was more than twice as long as the final version. Eliot sent the poem to Pound, a fellow modernist poet, who was an early supporter of Eliot’s work. Pound has been described by scholars as the poem’s “midwife” – he significantly edited the poem down to about half its original length.[30]

If you have read The Waste Land, you can see how dramatically Eliot’s original draft differed from the final version. Pound both excised and moved whole sections of the poem, including moving the poem’s iconic opening lines (“April is the cruellest month, breeding / Lilacs out of the dead land, mixing / Memory and desire, stirring / Dull roots with spring rain”) to the start of the poem, cutting the poem’s original opening verse about a night out at a pub in Boston, which he felt distracted from the poem’s message.[31] You can read more about what Pound cut here.

 

The Waste Land has two parts, one which has four divisions, and one which has five. Eliot originally divided the poem into four parts. Pound, however, was devoted to the five-division structure of classical poetry, and his preference shaped the poem’s final form.[32] Eliot than gave The Waste Land to his first wife, Vivienne Haig-Wood Eliot, who rewrote several lines.[33]

Whether Pound should be considered an author of The Waste Land has long been discussed (and, to a much lesser extent, Haig-Wood Eliot). Do their contributions to The Waste Land cross the line from editing to authorial expression? Some literature scholars refer to both Eliot and Pound as authors of The Waste Land, and some editions of the poem list Eliot as the author and Pound as the editor on the title page.

The Waste Land has been very financially successful since its initial publication in 1922. Indeed, Eliot and Pound (who both had business backgrounds/experience) aggressively marketed and “branded” The Waste Land.[34] The Waste Land only entered the public domain in Canada in 2015, and is not currently in the public domain in the United Kingdom.[35] Eliot’s estate continues to collect royalties through the poem’s publication and inclusion in a wide variety of textbooks: poetry, 20^th century literature, modernist literature, Great War literature, British 20^th century literature, and, because Eliot lived in the United States until moving to England to study at Oxford, American 20^th century literature. Had Pound been a co-author, his estate would have gotten a share of those royalties.

The England and Wales Court of Appeal mentioned The Waste Land in the Kogan decision in their discussion of the collaboration requirement of joint authorship. They described Pound’s revisions as having been made independently, rather than collaboratively with Eliot – in other words, Pound’s contributions could be distinguished from Eliot’s, meaning The Waste Land was not a collaborative work, and therefore not a work of joint authorship. Pound’s revisions were instead a derivative work that could potentially attract protection.[36] Floyd LJ noted that Pound and Eliot never considered themselves co-authors, though intention to jointly author a work is not required under English and Canadian copyright law.[37]

Orson Welles, Herman J. Mankiewicz, and Citizen Kane

Citizen Kane is considered one of the greatest, if not the greatest, films ever made. The script has been credited to both Herman J. Mankiewicz and Orson Welles, the latter of whom also directed and starred in the film. Welles’ screenwriter credit for Citizen Kane has been controversial since the film was released.[38] Mankiewicz wrote a letter to his father shortly after the film’s release: “I’m particularly furious at the incredibly insolent description of how Orson wrote his masterpiece. The fact is that there isn’t one single line in the picture that wasn’t in writing—writing from and by me—before ever a camera turned.”[39] In 1971, Pauline Kael famously wrote an article for The New Yorker called “Raising Kane”, in which she argued that Citizen Kane’s script was entirely written by Mankiewicz. John Houseman, who worked with Mankiewicz on early drafts as an editor, has similarly asserted that Welles did not write any of Citizen Kane.[40]

It is generally accepted that both Mankiewicz and Welles developed the plot and characters prior to actually writing the screenplay, and that Mankiewicz wrote the first draft with Houseman as an editor, and that Welles edited the draft scripts.[41] There were multiple drafts of Citizen Kane, and the final film differs greatly from any of the drafts written prior to the film’s production.[42] You can see how the final film differs from the final draft here.

Welles described the writing of the script as follows:

The initial ideas for this film and its basic structure were the result of direct collaboration between us; after this we separated and there were two screenplays: one written by Mr. Mankiewicz, in Victorville, and the other, in Beverly Hills, by myself. . . .The final version of the screenplay . . . was drawn from both sources.[43]

In 2023, Citizen Kane’s final screenplay was analyzed using statistical reasoning to try to determine its dominant author (or, if this was not an instance of joint authorship, but of sole authorship). Mankiewicz was identified as the dominant author, with 62.09% of his (writing’s) statistical profile detected in Citizen Kane, whereas 37.92% of Welles’ statistical profile was detected.[44]

Much of the debate around Citizen Kane’s authorship revolves around who actually put pen to page. For copyright purposes, under Kogan, Citizen Kane would be considered a work of joint authorship, even, as Kogan makes clear, if the majority (or all) of the screenplay was physically penned by Mankiewicz.

Robert L Carringer, who defended Welles in the years after “Raising Kane”, wrote the following:

Besides being Welles’ first film, Citizen Kane also marks one of the few times in his career when he was working from an original story idea rather than adapting an existing work. Mankiewicz was hired to furnish him with what any good first writer ought to be able to provide in such a case, a solid, durable story structure on which to build. What Mankiewicz gave him Welles approaches as he always approaches ‘story material,’ not as blueprint to be approximate or realized but as source work at the service of an original, independent creation, and he adapted it with the same freedom and disregard for authority he adapts a Shakespeare play or a thriller by Nicholas Blake. . . . In the eight weeks between the time the Victorville material [written by Mankiewicz] passed into Welles’ hands and the final draft was complete, the Citizen Kane script was transformed, principally by him, from a solid basis for a story into an authentic plan for a masterpiece.[45]

Is what Carringer describing really a case of a derivative work, rather than one of joint authorship? Or is what he describing the reality of creativity — that much of it is derivative, and involves building on the work of those who came before you, and perhaps both our lay and legal conceptions of authorship do not always reflect this?

[1] Some of the issues that may incentivize creatives to more aggressively protect their work, or to get a piece of the pie on work in which they could be considered a joint author, include the proliferation of generative AI accelerating a decades long devaluing of writing as a skill, and an ever growing number of new authors publishing work that started off as FanFiction.

[2] “What We Can Learn From Theranos’ Patent Portfolio?” (November 4, 2021), online: Patents Integrated <http://patentsintegrated.com/what-we-can-learn-from-theranos-patent-portfolio/>; Daniel Nazer Eff, “Theranos: How a broken patent system sustained its decade-long deception” (March 4, 2019), online: Ars Technica <http://arstechnica.com/tech-policy/2019/03/theranos-how-a-broken-patent-system-sustained-its-decade-long-deception/>.

[3] Shyamkrishna Balganesh, “Unplanned Coauthorship” (2014) 100:8 VA L Rev 1683 at 1684.

[4] Copyright Act, RSC 1985, c C-42 [“CA”], s 13(1).

[5] Balganesh, supra note 3 at 1685-6.

[6] CA, supra note 3, s 2.

[7] John Maryon International Ltd v New Brunswick Telephone Co Ltd, 1982 CanLII 2906 (NB CA),

43 NBR (2d) 469 [“New Brunswick Telephone Co”] at para 143.

[8] Neugebauer v Labieniec, 2009 FC 666 [Neugebauer] at para 36.

[9] New Brunswick Telephone Co, supra note 7 at para 143.

[10] Ibid.

[11] Ibid at para 146 [emphasis added].

[12] Levy v Rutley, [1871] WLR 976 (CA).

[13] Neugebauer v Labieniec, supra note 8 at para 41.

[14] Neudorf v Nettwerk Productions Ltd, 1999 CanLII 7014 (BC SC) at para 71.

[15] Balganesh, supra note 3 at 1685. See also: Elena Cooper, “Joint Authorship in Comparative Perspective: Levy v Rutley and Divergence Between the UK and USA” (2015) 62:2 J Copyright Soc USA 245.

[16] Neugebauer, supra note 8 at para 43.

[17] Ibid at para 51.

[18] Kogan v Martin, [2019] EWCA Civ 1645, [2019] All ER (D) 81 (Oct) [“Kogan CA”]. Note that the definition of “work of joint authorship” in the UK Copyright, Designs and Patents Act 1988 is identical to the definition of “work of joint authorship” in s 2 of the CA. Note that Kogan also cites from Neudorf despite the approach taken in that case having been rejected by the Federal Court. See also: Daniela Simone, “Kogan v Martin: A New Framework for Joint Authorship in Copyright Law” (2020) 83:4 Modern Law Rev 877.

[19] Ibid at paras 8, 15.

[20] Ibid at para 5.

[21] Ibid at paras 6-7, 10.

[22] Ibid at para 3.

[23] Ibid at para 53.

[24] Martin & Anor v Kogan, [2021] EWHC 24 (Ch) (11 January 2021)

[25] Ibid at para 310.

[26] Ibid at para 313.

[27] Copyright, Designs and Patents Act (UK), 1988, s 9(3).

[28] New Brunswick Telephone Co, supra note 7 at para 143.

[29] From Our Mutual Friend by Charles Dickens

[30] Mark Ford, “Ezra Pound and the drafts of The Waste Land” (December 13, 2016), online: British Library <http://web.archive.org/web/20191122092144/https://www.bl.uk/20th-century-literature/articles/ezra-pound-and-the-drafts-of-the-waste-land>.

[31] James Fox Robinson, “A formula for creativity – no.4 : il miglior fabbro” (January 13, 2014), online: The Imaginarium <http://jamesfoxrobinson.wordpress.com/2014/01/13/a-formula-for-creativity-no-4-il-miglior-fabbro/>.

[32] Marshall McLuhan, “Pound, Eliot, and the Rhetoric of The Waste Land” (1979) 10:3 New Literary History 557 at 559.

[33] Robinson, supra note 31.

[34] Stephen Brown, “Selling poetry by the Pound: T.S. Eliot and The Waste Land brand” (2015) 18:5 Consumption, Markets, and Culture 411.

[35] Note that The Waste Land entered the public domain in Canada and the US prior to changes in Canadian and America copyright laws that extended the term of copyright protection. See Richard A Parker, “Copyright and The Waste Land” (2002), online: Exploring The Waste Land <https://theworld.com/~raparker/exploring/thewasteland/excopy.html>; Don LePan “Copyright and the 50-Year Rule” (August 23, 2018), online: A Brief Submitted to the Standing Committee on Industry, Science and Technology <https://www.ourcommons.ca/Content/Committee/421/INDU/Brief/BR10008280/br-external/LePanDon-e.pdf> at 2.

[36] Kogan CA, supra note 18 at para 33.

[37] Ibid.

[38] Warren Buckland, Who Wrote Citizen Kane? Statistical Analysis of Disputed Co-Authorship (Cham, Switzerland: Springer Nature, 2023) at 1.

[39] Richard Meryman, Mank: The Wit, World, and Life of Herman Mankiewicz (New York: William Morrow, 1978) at 270.

[40] Buckland, supra note 38 at 1-2.

[41] Harlan Lebo, “The ‘Third Revised Final’ script of Citizen Kane: Orson Welles and the roadmap to a masterpiece”, online: Wellesnet < https://www.wellesnet.com/wp-content/uploads/2021/05/Citizen-Kane-3rd-Revised-Final-Script-With-Overlay.pdf> at 1.

[42] Ibid at 2.

[43] Robert L Carringer, “The Scripts of Citizen Kane” (1978) 5:2 Critical Inquiry 369

[44] Buckland, supra note 38 at 122.

[45] Carringer, supra note 43 at 400.