Answer: According to the facts below, the heirs of a deceased coauthor could not prevent publication of your novel, but they would be entitled to a portion of the profits generated.
An aspiring filmmaker, let’s call him Spielberg, worked with a World War II veteran, let’s call him Dan, to capture Dan’s astonishing life story. Spielberg and this Dan coauthor a comprehensive outline of Dan’s life story, which they both intend to turn into a novel or movie someday. Spielberg and Dan register the outline as coauthors with the U.S. Copyright Office. There are no other written agreements between them as to who owns what interest in the work.
Spielberg has been working on turning this outline into a screenplay for the past couple of years, and shortly before he finishes the project, Dan dies. Before Spielberg starts sending out the screenplay to movie studios, he thinks it would be a good idea to check with the adult children of Dan, whom Spielberg assumes have inherited Dan’s copyright interest in their coauthored work. Dan’s adult children give Spielberg wildly different answers: (1) “I don’t care what you do with your story;” (2) “How much will you pay me for permission right now?” and (3) “Don’t ever publish anything you worked on with my dad.” What can Spielberg do?
How is joint work or coauthored work treated under U.S. Copyright Law?
Section 101 of Title 17 of the United States Code (U.S. Copyright Law) 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.” Each owner of a joint work is a tenant in common with an equal and undivided ownership share. So, when a joint work is created, each author is simultaneously treated as if they owned 100% of the copyright in that work for the purposes of what they may do with the work. Each owner of a joint work is free to exploit the work without the consent of the other owners, but must account for the profits of that exploitation by splitting them equally among all of the joint owners. This exploitation right applies to nonexclusive licenses.
What if a coauthor writes a new story by himself, which is based on coauthored work?
Spielberg has been writing for a couple of years on his own to add to the outline he and Dan first wrote. If one author modifies a joint work to create a derivative work, that is, when sufficient original content is added to an underlying work, the result is a new derivative work, authored by the person who added the original content (this new author can be someone totally unrelated to the original authors of the underlying work). The authors of the underlying work do not share authorship with the author of the derivative work. The original joint authors intended to merge their contributions to create the original joint work, but their intent is not deemed to carry over to a derivative work to which they did not contribute. This is difficult to apply when it’s not clear whether the underlying work and the derivative work are truly separate works. Things get complex pretty quickly in trying to determine if new derivative work has been created. Absent a written agreement between the joint owners of the underlying work, only a court can determine whether new derivative work has been created by an author.
Still looking for more information?
If you are asking a similar question, an attorney who has the opportunity to review all of the associated documentation with your case will be able to give you clearer answers tailored to your specific situation. This hypothetical question also raises some concerns beyond copyright law. If you are going to go ahead and publish your work without a written agreement with your coauthor’s heirs, you will also want to ask your attorney about your state’s personality rights and libel laws. Generally the dead cannot be defamed and truth is an absolute defense to defamation. However, that does not necessarily prevent a coauthor’s surviving family members from filing a lawsuit for claims which can be related to defamation claims, like invasion of privacy, intentional infliction of emotional distress, or injurious falsehood. Email the author at Will@BlacktonLaw.com.