Thursday, August 20, 2009

Stormy Weather for Joint Authors: Doo Wop Ditties in the Seventh Circuit

Clients who are grateful to collaborators often wish to give credit to someone, particularly when they can't pay that person for their services. Designating that person a "joint author" may have unpleasant consequences.
Janky v. Lake County Convention and Visitors Bureau, --- F.3d--- 2009 WL 2357929 (7th Cir.) is a litigation involving members of the Doo Wop band Stormy Weather. I have written on the case before involving the issue of attorney sanctions. In this appeal the attorney committed the faux pas of forcing the client to pay sanctions against him out of a judgment he'd won. Since he lost the appeal, the issue was moot because "there is now no verdict from which sanctions can be deducted.
But the issue that divided the Sevent Circuit (opinion by Judge Evans, dissent by Judge Ripple) was on the issue of joint authorship.
Janky wrote a song. She copyrighted it, listing herself as the sole author. Farag listened and gave some suggestions. Based on those suggestions, Janky modified the work. Janky filed a copyright registration calling the modified version a "joint work". In the registration, she noted that Farag had a "10% ownership share". When she sued Farag for copyright infringement, she claimed that she didn't intend to make Farag a joint author.
Joint authors can't sue each other for copyright infringement. They can each license the work and must account to each other for proceeds.
The classic test for joint authorship is 1. whether the parties intended to create a joint work; and 2. whether each party contributed an independently copyrightable contribution.
The Seventh Circuit granted summary judgment against Janky in what it called a "close call". The dissent believed that there were issues of fact on both prongs of the test.
A good case on what type of evidence it takes to prove joint authorship and why it's important to think twice in filling out copyright registration forms.

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