The Author and the Other: Reexamining the Doctrine of Joint Authorship in Copyright Law
Tehila Rozencwaig-Feldman
Article

The Author and the Other: Reexamining the Doctrine of Joint Authorship in Copyright Law
Tehila Rozencwaig-Feldman
Article

  The full text of this Article may be found here.

32 Fordham Intell. Prop. Media & Ent. L.J. 172 (2021).

Article by Tehila Rozencwaig-Feldman*.

ABSTRACT

[O]

ver the years, there has been an increase in the importance and prevalence of the joint authorship doctrine resulting from the internet evolution and globalization processes which allow quick sharing of content and information among various creators from around the world. The collaborations that increased and intensified during the COVID-19 pandemic occurred across a wide variety of creative areas. Today, many types of works such as songs, movies, software, and computer games are created regularly through joint authorship. However, current copyright law regimes relate to this complex and fascinating phenomenon in a limited way, leading to courts’ inconsistent interpretation of the doctrine’s tests.

The joint authorship doctrine relies on one primary collaborative model, the “all-or-nothing” model, which conditions the granting of joint authorship on authors making similar contributions to a work. In the beginning of the twenty-first century, the English legal system began recognizing asymmetrical contributions of joint authors and responded by rewarding them proportionally on the basis of each author’s contribution to the work. However, both models ignore other types of contributions, such as those of ideas, participation in mass collaborative models, and the contribution of experts’ technical knowledge. Disregarding these types of contributions may reduce the incentive of creators to collaborate—one of the central challenges of the joint authorship doctrine. This disincentive to collaborate requires reexamination of the joint authorship doctrine. Despite the extensive legal literature suggesting it is essential to comprehensively modify the joint authorship doctrine, there is a great need to introduce a better model for determining joint authorship.

This article introduces a new approach to joint authorship, employing theoretical and empirical tools, in an attempt to better address the joint authors’ expectations from the collaborative process and the allocation of rights. The theoretical discussion will include a doctrinal analysis of joint authorship and the different requirements necessary to recognize this doctrine in the English and US legal systems. The empirical portion will explore individuals’ perceptions regarding joint authorship using quantitative tools. For the first time, the empirical research will test the allocation of rights in the “all-or-nothing” model as compared to the “proportional” model. The results demonstrate that a proportional allocation of rights, as sorted by the English legal system, will grant economic rights to joint authors in a greater number of cases. Additionally, the empirical research will show that, in some cases, remuneration should be divided proportionally between joint authors, even when the contribution is not copyrightable, such as with ideas or technical assistance.

The primary goal of this Article is to suggest an innovative model that provides a comprehensive normative solution to the challenges raised by existing models of the joint authorship doctrine. In addition, this Article seeks to provide greater certainty regarding the reward distribution among authors within the joint authorship context. Grounded in theoretical and empirical results, this model aspires to provide joint authors with rights and royalties in a proportionate and just manner—namely, by accurately accounting for each author’s contributions to the final work.

This model, which is based on a structured scale, will assist courts and joint authors in accurately assigning the relative portion of the work that each author contributed. In general, this scale helps to divide the joint authors’ world into three main categories: the “primary joint author,” the “secondary joint author,” and the “de minimis contributor.” The primary joint author appears at the top of the scale and would be entitled to an equal share of the rights in the joint work. The secondary joint author, whose contribution is copyrightable yet relatively smaller than that of the primary joint authors, should be entitled to a relative share of the rights. Finally, the de minimis contributor, whose contribution is not copyrightable, may be granted only a moral right (credit or acknowledgment) in the joint work.

In summary, by focusing on preserving the incentive of joint authors to create collaborative works, this Article aspires to propose a new, innovative model that promotes a distinct and feasible way to allocate joint authorship rights to better reward such authors.