We have all had projects where we need to work in a group. It is a problem that has haunted all of us since grade school. A group project is not always made up of every partner putting in equal effort. In fact, it is often the case that one party may provide little to no input whatsoever, and still receive the same grade as everyone else in the group. Unfortunately, this is not a problem that goes away with graduation. People work together all the time, and it is often the case that we need to look back after a project is done and ask, who actually did this. That specifically is a problem that surfaces within copyright law. When everyone is working together, we often need to define how much work someone puts in, to determine how much reward they get out. Sometimes, this is not so bad. People are hired and contracts are drafted to define exactly who does what, and in exchange for what. But this is not always enough.
By default, the initial owner of a copyright for a work is the author of that work.[1] The owner of a copyright has a lot of power over their created work.[2] According to 17 U.S.C.S. § 106, the owner of a copyright has the exclusive ability to do a number of things regarding their copyright, including reproducing it, creating derivative works, and distributing the work for sale.[3] So, it is important who counts as the “author” of the work, as they get all these benefits. When multiple people work together on a single project, there can be, and often are, multiple authors. Such a work is known as a “joint work,” defined in section 17 of the USCS 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.”[4] Under this law, the authors (or co-owners) have equal right to the copyright of the work.[5] But how much of a contribution is necessary to be considered an author? Courts do not fully agree on an answer, so two schools of thought have developed. For sake of easy reference, these differing views will be referred to as the Majority View and the Minority View.
The Majority View is the more popular of the two. It uses a two-prong test to determine if a person’s contribution is enough for them to be considered a joint author. This test was first created in the case Childress v. Taylor.[6] In this case, the court found that in order to reflect the language of the law more accurately, there are two elements one must show in order to demonstrate a contribution is enough to make a contributor a co-author: 1) the contribution that person made must be copyrightable; and 2) the co-authors must have made objective manifestations that would suggest they intended to be co-authors of the final work.[7]
The first prong serves as a baseline for how much of a contribution is needed. If one did not provide anything copyrightable, then they did not provide anything that is legally unique and all their own. Therefore, the Majority View is that the bar that must be reached to gain power over copyright, is that the contribution must be copyrightable. The second prong of the test helps to ensure fairness between the potential co-authors.[8] By requiring both sides to act like co-authors, it helps to ensure that both sides were contributing with that in mind. Additionally, it also helps to prevent contributors, who never held themselves out or considered themselves to be authors, from retroactively grasping for control of a popular or lucrative copyright.[9] If neither side was originally acting as if they would be co-authors, it would be unfair to suddenly treat them like they were.
The overall structure of the Majority View places a high bar for what a contributor must have offered to be a co-author. It is not enough that they simply make a copyrightable contribution, but also that the parties acted in such a way that implies intent to be co-authors. As such, the test heavily favors more major contributors as opposed to people offering small (if possibly important) contributions. Courts have viewed this test more favorably, and thus, it has received more validation.[10]
While most courts choose to follow the Majority View, the Minority View has also gained some traction and support. The Seventh Circuit first implemented this test in the case Gaiman v. McFarlane, and the test is expounded upon at length in an extended explanation by Professor Nimmer.[11] The test is as follows: In order for a contributor to be considered a joint author, the contribution they make to the final work need not be copyrightable, but must be more than de minimis.[12] The idea behind this is that anything that is copyrightable need not stem from a single person.[13] Multiple people can come together and create without any of them providing a separately copyrightable contribution.[14]
The Minority test covers a gap that the Majority test cannot, a situation where multiple people contributed to a single copyrightable work, but none of them individually contributed something copyrightable, and thus, no one would be allowed to own the work. That would clearly be an unfair outcome, to prevent people who still worked to create something that, as a society, we have recognized is worth protection from actually benefiting from that protection. It seems purposeful that the Minority test is designed to be significantly more lenient with what it requires of contributors. By drawing the line at de minimis rather than copyright, this allows people who could be adding critical elements to a work obtain copyright, without having to do nearly as much work.
That begs the question, what is the correct view for if someone is a co-author? Well, statistically, the Majority test, if only because it is used more frequently.[15] However, like most areas of law, that can’t cover everything. It is important to consider the less used alternatives for more general rules like the Majority test, since it can highlight areas of our law that are missing. The Majority test is clearly favored, but certainly has its gaps. Perhaps the Minority test is just what is needed to fill those gaps, or perhaps it could just inform a new solution that may reveal itself in time. Our laws are constantly evolving, which means we need to think about how to evolve them. I encourage you to consider this niche portion of copyright, and how you think this should be solved. What is the fairest way to determine if you actually helped with the group project? How do we encourage people to work together without encouraging people to try and swoop in and benefit from someone else’s work? Why does Billy get an A, when I did the whole presentation myself, and he just read the slides? All questions that, for better or worse, we can only solve by working together. And just so that you can’t go telling the teacher that I didn’t contribute, I have included below my own solution to this problem, plus a little explanation. I did my part, so you should do yours.
My test: The Card House Test.
In order for a contributor to be considered a co-author of a joint work, they must satisfy the following:
1) The contribution the potential co-author makes must satisfy one of the following:
a) the contribution must be individually copyrightable; or
b) the final work that the contribution is a part of is copyrightable as a whole, and if the contribution were to be removed from the final work, then the final work would not be copyrightable. In other words: the final work is not copyrightable, but for the contribution.
2) Each putative joint author must, at the time the contribution be made, intend for them to be treated as joint authors.
For the sake of convenience and ease of reference, I have dubbed this test, The Card House Test. That is because it is helpful to imagine its most operative element (Element 1, part b of the test, specifically) with the metaphor of a house of cards.
Imagine multiple people building a house of cards. Each person contributes some number of cards to the overall structure. Once it is built, if we want to determine if someone actually contributed to building the house, we would remove their cards from the structure. If the house still stands without their cards, then they did not technically contribute to “building” the house, they merely decorated it. They did not help build a structure, but rather added to an existing structure. Their contribution may have made the house more appealing, even more valuable, but it was not responsible in letting the house stand.
Alternatively, if the house of cards would fall over from removing the person’s cards, then their contribution was integral to the house standing. They may not have provided the only contribution that was necessary for the house to stand, but if it were not for their contribution, the house would not stand. As such, they did help to build the house.
For copyrightability, a contribution that is not necessary for the final work to be copyrightable does not receive the benefit from the achieved copyrightability of the whole. It was not their work that resulted in said copyrightability (the house can stand without them, the work is copyrightable without them) so they do not get the credit. They do not get to own what they did not help to make, and they did not help to make the copyright.
Written by: Justin Kocian
[1] 17 U.S.C.S. § 201.
[2] Work, in this instance, refers to a particular piece created by an author as defined under 17 U.S.C.S. §§ 101-02 (“A work is “fixed” in a tangible medium of expression when its embodiment in a copy or phonorecord, by or under the authority of the author, is sufficiently permanent or stable to permit it to be perceived, reproduced, or otherwise communicated for a period of more than transitory duration.”).
[3] 17 U.S.C.S. § 106 (Note that while this statute enforces rules for who owns a copyright, it is possible to contract around it to change who holds the copyright for a work. In this piece we are mostly focusing on the “default” rules, assuming no contract for hired work); 17 U.S.C.S. § 201.
[4] 17 U.S.C.S. § 101.
[5] Id.
[6] Childress v. Taylor, 945 F.2d 500 (2d Cir. 1991).
[7] See id. Note: This piece will focus more on the first prong than the second, as it is the main determining factor of what must be contributed in order for the contributor to be considered a co-author.
[8] See 17 U.S.C.S. § 101. (“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 inclusion of intention can suggest a goal of fairness, as if people intended to be joint authors then they should be treated as such. It is only fair that if you set out to do something together, then you would reap the rewards together).
[9] See Childress, 945 F.2d at 505 (referring to H.R. Rep. No. 1476, 94th Cong., 2d Sess. 120 (1976)).
[10] For instance, the Second, Ninth, and Eleventh Circuits have held in favor of the Majority View. Id.; Ashton-Tate Corp. v. Ross, 916 F.2d 516, 521 (9th Cir. 1990) (“our circuit holds that joint authorship requires each author to make an independently copyrightable contribution”); Aretz v. Douglas, No. 5:12-cv-246, 2013 U.S. Dist. LEXIS 194861, at *4 (M.D. Fla. Nov. 26, 2013).
[11] 1 Nimmer on Copyright § 6.07 (2023); Gaiman v. McFarlane, 360 F.3d 644 (7th Cir. 2004).
[12] More than “de minimis” means more than a minimal contribution. Essentially, something that is de minimis would be something that is negligible to the overall work. 1 Nimmer on Copyright § 6.07(1) (2023); See Gaiman, 360 F.3d at 660-62.
[13] 1 Nimmer on Copyright § 6.07 (2023).
[14] Id.
[15] Childress v. Taylor, 945 F.2d 500 (2d Cir. 1991); Ashton-Tate Corp. v. Ross, 916 F.2d 516, 521 (9th Cir. 1990)(“our circuit holds that joint authorship requires each author to make an independently copyrightable contribution”); Aretz v. Douglas, No. 5:12-cv-246, 2013 U.S. Dist. LEXIS 194861, at *4 (M.D. Fla. Nov. 26, 2013).