22. THE TWO HEADS
In The Forger’s Apprentice, Sherlock and John recall meeting with a film producer who asks them to investigate the disappearance of the star of the film. In Case File #13 we considered how the law defines the concept of the author in relation to different types of protected work, including films. We also considered how a film based on an existing screenplay or script constitutes a new copyright work with different owners, usually the producer and the principal director.
In this Case File #22 we consider the concepts of joint authorship and joint ownership of a copyright work.
Section 9(1) of the Copyright Designs and Patents Act 1988 (the CDPA) tells us that an ‘author’ of a literary, dramatic, musical and artistic work is the person who creates the work. However, the CDPA provides a specific definition of authorship when dealing with a film: the legal authors of a film are the producer and the principal director of the film (CDPA, s.9(2) (ab)). Together they are the joint authors of the film.
More generally, the CDPA defines a work of joint authorship as one ‘produced by a collaboration of two or more authors in which the contribution of each author is not distinct from that of the other author or authors’ (s.10(1)). So, when trying to establish whether a work has been jointly authored, ask whether:
– each of the authors contributed in some way to the making of the work
– the work has been produced through a process of collaboration, meaning that, when setting out to create the work, the authors were working to some form of shared plan
– the respective contributions are not distinct or separate from each other
If the answer to each of these questions is yes, the work has been jointly authored.
The case of Beckingham v. Hodgens (2003) provides a good illustration of when the law considers a work to be jointly authored. In this case, a session musician was hired to play the fiddle (the violin) at a recording session in 1984 organised by the band The Bluebells. The band were recording their version of the song Young at Heart, a song first recorded in 1982 by the female pop group Bananarama. The session musician contributed a new fourteen-note introduction to the song. Years later, he based his claim of joint authorship on the introduction he had contributed. The court held that he had jointly authored the new version of the work.
Have you ever created a work of joint authorship?
JOINT AUTHORSHIP AND COPYRIGHT DURATION
In Case File #2 we saw that, generally, copyright in literary, dramatic, musical and artistic works lasts for the life of the author plus 70 years. After that time, copyright expires and the work enters the public domain.
However, one of the important consequences of establishing that a work is a work of joint authorship concerns how duration of protection is calculated. If a work has been jointly authored, copyright lasts for 70 years from the end of the year in which the longest surviving joint author dies.
Consider, for example, the songs of John Lennon and Paul McCartney.
John Lennon was shot and killed on 8 December 1980. The best-selling single of Lennon’s solo career was Imagine, first released in 1971. It remains in copyright for 70 years from the end of the year in which Lennon died: that is, until 31 December 2050. However, all the songs that Lennon co-wrote with McCartney during their time in The Beatles will remain in copyright for 70 years from the end of the year in which Paul McCartney dies. If, for example, McCartney were to die in 2020, the Lennon and McCartney songbook will remain in copyright until 31 December 2090.
Given that the legal authors of a film are defined by the CDPA to be the producer and the principal director, one might also expect the duration of copyright in a film to be calculated with reference to these two individuals. But in fact, copyright duration in a film is calculated in accordance with the last to die of four specifically designated persons: the director, the author of the screenplay, the author of the film dialogue (if different), and the composer of any specifically created film score (s.13B(2)).
Why do you think this is?
Normally, the joint authors of a work will also be the joint owners of the copyright in the work. Moreover, joint authors will typically own the copyright in equal shares even if they have not contributed equally to the creation of the work. In the Beckingham case, discussed above, although the session musician’s contribution to the creation of the song was based primarily on the new fourteen-note introduction, the court decided that he was entitled to an equal share in the copyright.
Another important consequence of joint ownership is that you cannot simply acquire permission to make use of a work from one of the joint owners only. You must get permission to use the work from all the relevant joint owners (CDPA, s.173(2)). And this applies to the joint owners themselves. One joint owner cannot grant permission to someone else to make use of the work without the agreement of the other joint owner(s). Indeed, if one joint owner – let’s call him George – granted a licence to a third party to make use of the work without the consent of the other joint owner(s), George would actually be infringing the copyright of the other joint owners by authorising the use of the work without their permission.
FOR DISCUSSION: FILMS WITHOUT AUTHORS
We know that the duration of copyright in films is calculated in accordance with the last to die of four designated persons: the director, the screenplay writer, the author of any film dialogue, and the composer of the film score.
However, if a film does not have a director, a screenplay writer, an author of any dialogue, or a composer, the duration of copyright is calculated differently: copyright expires 50 years from the end of the year in which the film was made (CDPA, s.13B(9)).
What type of works would qualify for protection under this heading? What types of films do not have a director, an author or composer? And why do you think these films are treated differently when calculating duration of protection?
Imagine that you take some spontaneous footage of your friends in the park using your mobile phone. The footage you take is a film, according to the CDPA. But how long will copyright in that work last?
Copyright Designs and Patents Act 1988: http://www.legislation.gov.uk/ukpga/1988/48/contents
For further information on copyright duration in the UK, see Copyright Bite #1 – Copyright Duration: https://www.copyrightuser.org/create/public-domain/copyright-bite-1-duration/
For a resource to help you calculate whether a work is in the public domain in the UK or other EU Member States, see www.outofcopyright.eu
If you are interested in films that are no longer in copyright (as well as links to those films) you could browse or search on Wikimedia Commons: https://commons.wikimedia.org/wiki/Category:Films_in_the_public_domain
Download the PDF version of Case File #13 – The Multiple Rights
Download the PDF version of Case File #2 – The Monster
Download the PDF version of Case File #22 – The Two Heads
More Case Files
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24. The Retrieved Image
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25. The Accidental Image
In this Case File #25 we explore the relationship between documentary filmmaking, the re-use of other people’s work and copyright exceptions.
26. The Recorded Performance
In this Case File #26 we look at the protection conferred to actors and other performers by performers’ rights.
27. The Interview Tape
In this Case File #27 we look at the different types of rights that may be ‘caught’ in the recording of interviews.