Co-authors and Copyright
Q. I wrote a novel with a co-author that now is out of print. My co-author is writing another novel using the characters from our novel. Can she do this without my permission?
A. Presumably you and your co-author didn’t have a collaboration agreement (or that agreement didn’t cover the issue of derivative works). Unfortunately, joint authorship without such an agreement can cause major headaches for co-authors. Let’s review.
Section 101 of the United States copyright law states: “A ‘joint work’ is 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.” Section 201 of the same law says: “The authors of a joint work are co-owners of copyright in the work.” Any joint author (without the permission of the other joint authors) can grant non-exclusive licenses to third parties to exploit the work – provided that the other joint authors get an equal share of the licensing proceeds. However, no single joint author can give a third party an exclusive copyright license unless all joint authors agree to exclusivity.
Therefore, both you and your co-author are “joint authors” and are entitled to all the rights of authorship to which an individual author would be entitled. The right to prepare derivative works – such as a novel using the characters of your original novel – always is controlled by copyright owners However, because each joint owner has the right to use the joint work, each may create a derivative work without infringing on the copyright of the other joint owner.
Further, all of the new material in the derivative work by your co-author is owned by her and only her – you have no rights in that material. On the other hand, your co-authors’ creation of the derivative work does NOT divest you of your rights in the characters or the original work; the derivative work copyright extends only to the new matter added by its author.
But wait – there’s more. Because, as noted above, joint owners are entitled to share in profits derived from exploitation of a joint work, you can claim that you are entitled to a share of the profits of the derivative work and a share of copyright credit for that work. Valuing that share, of course, is a significant opportunity for dispute, and has led to numerous lawsuits among co-authors.
So — the simple answer to your question is that no, your co-author doesn’t need your permission to use the characters in her novel; however – realistically — because most publishers require the assignment of exclusive rights during the term of the publishing agreement (including to the characters) your co-author will have to bring you into the picture to sell the work.
Obviously, the best medicine is prevention. It is foolhardy to enter into a joint authorship relationship without a collaboration agreement. For example, what happens if your co-author died? The co-author’s copyright would devolve upon her heirs or legatees, who may not agree with your publication choices. The ownership rights may be tied up in probate. With a properly drafted collaboration agreement, you could avoid these issues entirely by providing that the deceased author’s estate must transfer her share of copyright to the surviving author in return for a specified payment.
© 2018 Daniel Steven