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I was privileged to address the recent annual membership meeting of Boating Writers International, Inc. in Miami Beach, Florida in connection with the Miami Boat Show. At the presentation, one of the members raised an excellent question: “What effect does an editor’s comment and revision have on copyright ownership of an article?” (It occurs to me that I might be finding out firsthand very shortly.)
The answer, I am afraid, is the usual lawyer’s “It depends.” Although, in general, an editor’s input will have no effect on the writer’s exclusive copyright ownership.
Under the Copyright Act, 17 U.S.C. § 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.
Case law has added the additional considerations that, at the time of the creation of the work both must intend that the work will be a work of joint authorship, and each joint author's contribution must be more than de minimis. When a writer submits his or her manuscript to an editor for stylistic suggestions and tightening, it is doubtful that either writer or editor envisions that the work as published will be jointly owned. Several cases have addressed this issue:
Childress v. Taylor refers to the writer/ editor hypothetical, and establishes that the “intent” required for joint authorship includes the intent of all participants that the work be considered a work of joint authorship. Childress v. Taylor , 945 F.2d 500, 507 (2d Cir. 1991).
Childress was asked to write a play about ''Moms'' Mabley and did so. She was assisted by Taylor, the actress who was expected to play the leading role, who provided the results of research concerning the life of ''Moms'' Mabley. Taylor also made some incidental suggestions, contributing ideas about the presentation of the play's subject and possibly some minor bits of expression. But there was no evidence that these aspects of Taylor 's role ever evolved into more than the helpful advice that might come from the cast, the directors, or the producers of any play. “A playwright does not so easily acquire a co-author.”
The next case involved the play, Rent. In Thomson v. Larson, 147 F.3d 195 (2 nd Cir. 1998), even though Thompson’s contributions to the play were more than de minimis no joint authorship was found. Given the author's having ''retained and intended to retain at all times sole decision-making authority as to what went into'' the play, his having billed himself as sole author (although he listed Thomson on the script's final page as ''dramaturge''), and other evidence indicative of his intent, the court had no hesitation in denying the contributor co-author status.
The most elaborate description of the requisites for being a joint author comes in Aalmuhammed v. Lee, 202 F.3d 1227 (9 th Cir. 2000). Warner Bros. contracted with Spike Lee to make the motion picture Malcolm X, starring Denzel Washington. Washington asked Jefri Aalmuhammed, a devout Muslim, ''to assist him in his preparation for the starring role because Aalmuhammed knew a great deal about Malcolm X and Islam.''Mr. Aalmuhammed claimed that his contributions made him a co-author of the film.
The court summarily disposed of Aalmuhammed's claims regarding his ''substantial and valuable contributions to the movie, including technical help, such as speaking Arabic to the persons in charge of the mosque in Egypt, scholarly and creative help, such as teaching the actors how to pray properly as Muslims, and script changes to add verisimilitude to the religious aspects of the movie.'' Activities as translating on the set plainly do not constitute copyrightable contributions to a motion picture. But, in addition, Aalmuhammed ''submitted evidence that he rewrote several specific passages of dialogue that appeared in Malcolm X, and that he wrote scenes relating to Malcolm X's Hajj pilgrimage that were enacted in the movie.'' Those matters do rise to the level of being independently copyrightable contributions.
Nonetheless, the Ninth Circuit (the Federal Appellate Court in California) rejected Aalmuhammed‘s claim to be a co-author of the film:
So many people might qualify as an ''author'' if the question were limited to whether they made a substantial creative contribution that that test would not distinguish one from another. Everyone from the producer and director to casting director, costumer, hairstylist, and ''best boy'' gets listed in the movie credits because all of their creative contributions really do matter. It is striking in Malcolm X how much the person who controlled the hue of the lighting contributed, yet no one would use the word ''author'' to denote that individual's relationship to the movie. A creative contribution does not suffice to establish authorship of the movie.
With those preliminaries out of the way, the court settled on ''the person to whom the work owes its origin and who superintended the whole work, the 'master mind.'' So who is that master mind? ''In a movie this definition, in the absence of a contract to the contrary, would generally limit authorship to someone at the top of the screen credits, sometimes the producer, sometimes the director, possibly the star, or the screenwriter -- someone who has artistic control.'' Given Aalmuhammed's failure to scale those heights, the court denied his claim.
A later case applied three factors from Aalmuhammed to determine whether a contributor, in the absence of a contract, should be considered a joint author: (1) whether the purported author is ''the master mind''; (2) whether the ''putative coauthors make objective manifestations of shared intent to be coauthors''; and (3) whether ''the audience appeal of the work turns on both contributions and the share of each in its success cannot be appraised.'' Morrill v. Smashing Pumpkins, 157 F. Supp. 2d 1120, 1123 (C.D. Cal. 2001). It concluded that the musicians filmed in a music video (that was used as a promotional tool for their band) qualified as joint authors along with the videographer.
In short, it is possible in certain circumstances that the contributions of an editor might be extensive enough (not de minimus) that, given the intent that the two contributions be merged into one final work, a court would take the next step and seek to determine whether the contributors actually intended the work to be a joint work of authorship within the meaning of the Copyright Act. However, in the usual case, in which the author’s work is presented under a byline, and the editor’s comments are the usual “stylistic suggestions and tightening,” that would not be the case, and the copyright would be owned solely by the author.