Anthony Elia

The effective date of a U.S. copyright registration is the date the U.S. Copyright Office receives all the required elements in acceptable form regardless of how long it then takes to process the application and mail the certificate of registration. 

Readers of the best selling “Deceptively Delicious,” by Jessica Seinfeld (comedian Jerry Seinfeld’s wife) have noticed similarities with Missy Chase Lapine’s cookbook, “The Sneaky Chef.”  Both cookbooks teach parents how to surreptitiously serve vegetables to their picky children.  See, NYT, October 19, 2007.

From the legal perspective, recipes which consist merely of a listing of ingredients and directions on preparing them are not subject to copyright protection.  On the other hand, a recipe that is accompanied by substantial literary expression in the form of an explanation, directions, anecdotes, reminiscences or historical information probably will be protected by copyright.  The recipes in the “The Sneaky Chef” appear to fall into the former category. 

Finally, courts have extended protection to a compilation of recipes, as in a cookbook, irrespective of whether they are protected as individual recipes, only where a very substantial portion – or all - of the book is copied.  Protection of a collection of recipes as a compilation would not apply where only mere “similarities” between two works were asserted.
© 2007 Anthony N. Elia

                Given the prevalence of collaborations of all kinds in writing and publishing, from writers and experts to writers and researchers, the law of shared or “joint” copyright is worth some consideration.  In the most general terms, joint authorship is the sharing of a copyright by individuals who contribute to a work.  Disputes about ownership of copyright frequently arise when collaborative projects fall apart, but understanding joint authorship can help writers properly identify and resolve possible problems and know when to seek appropriate legal help. 
                Joint authorship has its privileges.  First among these privileges is that a joint author has the right to use the work and license it to others without permission.  Accordingly, a joint author is not deemed an “infringer” for using or selling the work without permission.  While the joint author may exploit the work, he or she must split the profits with the other owner(s).  In the absence of an agreement stating otherwise, two joint authors will share profits from all uses of the work 50/50, regardless of the magnitude their respective contributions.  Accordingly, even a person whose contribution is relatively minor, if accorded joint authorship status, enjoys a significant benefits and rights in the work. 
                 The definition of “joint authorship” comes directly from the Copyright Act.  The Act states that 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.”  The two basic ingredients for joint authorship are a contribution to the work and the intent to be joint authors.  A joint work should not be confused with a “collective work” which is a work, such as a periodical issue, anthology, or encyclopedia, and consists of a number of collected contributions that are intended to be separate and independent. 
               The first requirement for joint authorship is a contribution to the work.  The type of contribution that entitles someone to a joint author status is not absolute.  The contribution must, however, be able to stand on its own as copyrightable subject matter.  Examples of copyrightable subject matter that would satisfy the first prong of the joint authorship test are photographs, lyrics to a song, and as little as a few sentences of text.
On the other hand, the contribution of non-copyrightable subject matter such as ideas, research, data, copyedits and critique will not qualify the contributor for joint authorship.  One court has noted in this regard that “the assistance that a research assistant or secretary or draftsman or helpfully commenting colleague provides in the preparation of a scholarly paper does not entitle the helper to claim the status of a joint author.” Determining when the helper is a joint author is not always easy however—partly because of the difficulty of determining whether the contribution is independently copyrightable.  To complicate matters, one jurisdiction has loosened this requirement under some circumstances—a move that could broaden the pool of potential joint authors.  The best way to deal with this uncertainty is to identify all contributors to a project and err on the side of caution in treating them as potential joint authors.
                Merely contributing copyrightable subject matter to a work does not give rise to joint authorship in the absence of the intention to be joint authors.  In part, this means that the parties intend their contributions to be merged inseparably into the work or project.  In somewhat circular reasoning, the courts also require proof that the parties intended to be joint authors.  It is not necessary, however, that the parties understand all the legal consequences that flow from joint authorship.  Determining the parties’ intentions at the time of the work may not be easy.  The parties’ agreement as to attribution of the work will be accorded great weight, but is not conclusive.  For example, a ghostwriter may not intend to be given author credit, but may still intend to be a joint author. Collaborators should carefully consider what consequences they wish to flow from their contributions and put it in writing.
               The best way to avoid disagreements and unintended consequences with joint authorship is to proactively identify potential joint authors and enter into some type of written agreement with them as early in the project as possible.  The pool of potential joint authors must include anyone who contributes copyrightable subject matter to the work such as written material, notes, illustrations or photographs. To be cautious, the pool should also include individuals who contribute seemingly non-copyrightable subject matter such as data, research, background information, interviews, drafts, notes and quotes.  Even individuals contributing substantial critique or ideas should be treated as potential joint authors on a big project or to be especially cautious. 
               As a final note, the intended author should never forego obtaining an assignment or license from a contributor because he or she assumes that they are protected by the work made for hire doctrine, even if the collaborator is paid for their contributions.  Finally, if the contributor is not just a casual helper and is intended to be a joint author, the parties should enter a collaboration agreement. 

© 2005 Anthony N. Elia