Before You Co-Write . . .
One of the most famous Broadway musicals of the 1990s, teaches a lesson to all creators about copyright ownership in joint works. Someone recently asked me about famous theatre cases, and this is one that identified a legal question that still is not fully resolved. Stay with me, because this applies to all copyrighted works, not just musicals. So, if you’re a songwriter, poet, author, painter, whatever, this is important. If you don’t know what I’m talking about yet, I’m talking about the musical RENT.
RENT is Jonathan Larson’s legacy. Tragically, he died right before its off-Broadway debut and right before it became a huge success. When he was finalizing the script, he hired a dramaturg named Lynn Thomson. Without getting into too many details, they didn’t have a formal written agreement identifying who would own what if they created something together. After the show was successful, Thomson filed a copyright infringement lawsuit and argued that she was a joint author of the musical.
At trial, it was undisputed that Thomson had made recommendations that were incorporated into the musical. That wasn’t in question. The question became: does this make her a joint author? A joint work is a work prepared by two or more authors with the intent that their work be put together to form a unified whole. Paraphrasing 17 U.S.C. § 101. That sounds simple enough, but courts in the United States are actually pretty unsure about what this means. Some courts take a broad view about this and look at a totality of factors to make a decision. E.g. Richlin v. Metro-Goldwyn-Mayer Pictures, Inc., 531 F.3d 962 (9th Cir. 2008). Others, like the court in the RENT case, focus on that word “intent.”
With RENT, the court looked at the fact that Larson had told everyone he worked with that this was his musical. He never wavered on that. No matter what anyone did, this was his musical, and he was going to be the sole author of it. Even though he admittedly liked some of Thomson’s edits and even added them to the musical, the intent he manifested was that the work was his, not a joint work. Because of this, the trial court (and later the appeals court) found that RENT was not a joint work. Thomson v. Larson, 147 F.3d 195 (2d Cir. 1998).
But that’s not the end of the story. The appeals court also said that there could be an argument that what Thomson herself created was individually copyrightable. Even though it wasn’t a joint work, if her individual contributions were uniquely copyrightable on their own, then maybe a different lawsuit could’ve been brought to address that question. Because Thomson’s lawyer didn’t argue that issue, they had to refile a new lawsuit. And that second case settled without that open question decided.
So, here’s the lesson: even if you tell everyone you work with that this is your project, that it’s your creation, that it’s your copyrightable work, you’re not done. It’s certainly helpful, but the only way to truly address all arguments of co-authorship from people who help you on your project is to have a written document that outlines exactly who owns what.
I know that as an artist it can be really hard to have these conversations with co-creators. You don’t want to put a piece of paper in front of someone that you’re working with, especially when you’re in a creative environment. But if you don’t have a written understanding when you’re working with other creators, there’s always a potential risk. You may unintentionally create a joint work or use someone else’s individually copyrighted element and putting it inside of yours.
Entertainment lawyers like me would love to have another case addressing the question left open by the RENT court: how do we know when individual contributions are individually copyrightable? An answer to that question would be great. But, as a creator, you don’t want to be the name tied to the next famous court case. Avoid that by making sure you have a written agreement (ideally, drafted by a lawyer familiar with that kind of art) before making a collaborative work.