Joint Works and "Independently Copyrightable Contributions"

“Loose language sinks ships” was a saying in World War II. As applied to legal opinions, loose language leads not to ships sinking, but to judicial efforts to undo concepts never meant or at least not well thought out.  Loose language often occurs when a court is rejecting an erroneous argument, leading some courts to make an overstatement in the process of rejecting the erroneous argument.

This occurred in the Second Circuit with the requirements for joint authorship. One might assume that to be joint authors each party should be – an author. Being an author has always meant contributing “authorship,” that is, protectible material. One should begin by looking to the statutory definition of “joint work”:

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.

There is nothing difficult in that definition. There needs to be “authors.” To be an “author” no court has ever doubted you have to contribute authorship; i.e., protectible expression. Joint works can take two forms: (1) interdependent parts of a unitary whole, like lyrics and music joined together in a song, or (2) two authors who contribute on a single work, like a law review article. Their contributions are inseparable, meaning each drafted parts, combined those parts, revised them, etc. until they are satisfied with the whole. The final result is one where you wouldn’t be able to separate out each contribution and it make sense as an interdependent work.

That’s it. It’s not difficult to understand. Congress did a good job. There can still be disputes over the parties’ intentions: recall the definition not only requires the claimants to be authors, but they must have intended that their work be a joint work, one jointly owned, like Lennon & McCartney. Plays have been a ripe area for these disputes, and the 1991 opinion by the Second Circuit in Childress v. Taylor, 945 F.2d 500, set things awry. The panel opinion was by the great Jon O. Newman, as careful a jurist as there ever was, and a real specialist in copyright law. In Childress, you had a stereotypical dispute where one person claimed to be the sole author, while another claimed to be a joint author. In examining the parties’ relative contributions, Judge Newman asked, “whether the contribution of each joint author must be copyrightable or only the combined result of their joint efforts must be copyrightable.’ 945 F.2d at 505. 

The phrasing was unfortunate, in particular the word “copyrightable.”  That word seemed to invoke the “interdependent” part of the statutory definition, but the issue before the court was the inseparable part. For the inseparable part of the definition, all that needs to be contributed is more than a de minimis amount of expression. You can't contribute only unprotectible material since you aren’t an author. 

The Nimmer treatise, which Judge Newman cited, inexplicably took the view that one needn’t contribute expression. I and the Copyright Office took the position that you have to contribute expression, otherwise you are not an author. Judge Newman puzzlingly thought that “author” as used in the statute referred only to the ”originator” of something, and that the originator of an idea, and therefore an “author” even though six months earlier, in Feist Publications, Inc. v. Rural Telephone Service, 499 U.S. 340, the Court repeated that it was not enough to be the originator of something. As far back as 1879, the Feist court noted,

the Court emphasized the creative component of originality. It described copyright as being limited to "original intellectual conceptions of the author," and stressed the importance of requiring an author who accuses another of infringement to prove "the existence of those facts of originality, of intellectual production, of thought, and conception."

499 U.S. at 346.

Happily in the end, Judge Newman agreed that each joint author has to make a “copyrightable contribution.” He did not say “independently copyrightable,” although the trial court had. Judge Newman wrote:

In this case, the issue is not only whether Judge Haight applied the correct standard for determining joint authorship but also whether he was entitled to conclude that the record warranted a summary judgment in favor of Childress. We are satisfied that Judge Haight was correct as to both issues. We need not determine whether we agree with his conclusion that Taylor's contributions were not independently copyrightable since, even if they were protectable as expression or as an original selection of facts, we agree that there is no evidence from which a trier could infer that Childress had the state of mind required for joint authorship.’

Seven years later, in another case involving a play, a different panel, in an opinion by Judge Calabresi, wrote:  "Childress held that collaboration alone is not sufficient to establish joint authorship. Rather, the contribution of each joint author must be independently copyrightable."

Thomson v. Larson, 147 F.3d 145, 200 (2d Cir. 1998). 

Blessedly, the Second Circuit, in 16 Casa Duse, LLC v. Merkin, 791 F.3d 247, 256 n.3 (2015) put the nail in the erroneous interpretations of Childress:

“It seems likely that ‘[b]y “copyrightable” [the Childress court] meant only to say that the coauthor's contribution must be the product of authorship, i.e., expression. [The court] did not mean that in order to be a coauthor one must be able to obtain a copyright on his or her separate contribution,’ 2 Patry on Copyright § 5:15, or even that such would be possible.”

All this gets us to Elliot v. Cartagena , 2025 WL 486634 (SDNY Feb. 13, 2025), another stereotypical joint authorship claim, involving musical works. Plaintiff claimed he not only wrote the lyrics but also contributed to the “vocal melody and rhythmic flow.” Defendant claimed Plaintiff only contributed “four basic, commonplace phrases ubiquitous in hiphop and rap music” In a section ominously entitled “Independently Copyrightable Contribution,” the court held that at least on a motion to dismiss, plaintiff had pled enough to survive. The court of appeals’ 16 Casa Druse opinion was cited but not for its clarification in footnote 3 quoted above. Hopefully, further briefing in the case will.

 amount of expression. That is enough to be an joint author. You can’t have contributed only ideas or other unprotectible material since you aren’t an author.