E88: Unintentional Collaboration: How to Accidentally Give Your Contractors Co-Ownership of Your Work

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Hello, everyone.

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Welcome to this month's LinkedIn live.

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I do these every last Wednesday of the month.

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I can't believe it's going to do that at noon Eastern.

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These are recorded and they can be found in three places.

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here, of course, I'm linked in at my profile, on the Think

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Beyond IP YouTube channel.

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And this will also be turned into a podcast episode of the Hourly to Exit

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podcast, which you can find, wherever you like to listen to my podcast.

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And so depending on how cleanly this goes, This will be the version,

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otherwise I will probably re record it.

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please feel free to say hi at any time.

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Also, put your questions or comments in the chat at any time.

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I might answer them at the moment or I will save them to the end of my spiel.

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So I will talk to you for about 15 to 20 minutes, depending how quickly I talk.

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and then after that, all the Q and A time that you need.

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And just a brief disclaimer before we get started that this is legal information,

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not legal advice, and it does not create an attorney client relationship.

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And please do not share any confidential information in the chat

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that Everyone will be able to see it.

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And if you have any questions about your specific circumstances,

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then you should hire a lawyer.

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All right, great.

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So with that, this is basically a follow up from last month's linkedin live.

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So last month I, covered a collaboration when we want to

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collaborate with a colleague.

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But what the consequences are if we don't have an agreement in place.

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when I was titling this, I know it says accidental collaboration.

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I'm pretty sure on LinkedIn live, it kind of happened organically

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during the conversation with someone.

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They they mentioned a circumstance like, Oh, that's an accidental collaboration.

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And so that became the title of this live.

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And then as I was putting these slides together, I was just looking

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at, Oh, is that, a term of art.

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and it turns out accidental collaboration is a term of art,

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but it's considered a good thing.

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So what happens when you are, meeting in person, an argument for having

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in person work environments that you can just kind of organically

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collaborate with your colleagues.

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Whereas the unintentional collaboration is the bad kind where we, believe that

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we're hiring a contractor to work on, some of our work, but we don't have an

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agreement in place and we think we own everything because we hired them to

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create these changes or add this content.

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but when we don't have the agreement in place, we can end up with.

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an unintentional collaboration.

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So that is what we are going to talk about today.

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So I'm not going to go over, all of the details of what collaborations are,

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you can catch up, and you don't need to see last month to understand this 1.

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But generally, the term collaboration is not a copyright term, it's a general

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term that we use when we talk about two or more people working together to,

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a similar end, whether it's creating a new work or, putting together a

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summit or creating a new company.

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Those are also called collaborations.

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but under copyright law, the how copyright law looks at collaborations, Is that it

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calls them joint ownership of a work.

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And so there's a couple of different terms.

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You'll find it under co-ownership co-author joint author, joint

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authorship, co-copyright joint work.

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Those all are the result of a collaboration.

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In the creation of a copyrighted work and the consequences of being one

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of those things that join work, co copyright, all those, is that, and

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it's a little bit weird, but each party owns 100% of the entire work.

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there's two of you.

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One owns 50%, the other owns 50%.

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There's three of you.

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One owns the third, a third, a third.

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Each collaborator owns 100 percent of the work.

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So what does that mean?

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That means that each party to the collaboration can exercise 100 percent

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of the copyrights, on their own without consent of the other parties.

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And so when we think about what copyrights we have, what are the

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bundle of rights that we have when we are a copyright owner?

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It's the right to use it, to display it, to perform it, to distribute

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it, to make copies of it, and to authorize derivatives of it.

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So if I am one of several, joint owners, each one of us Can do all of those things.

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some, or all of those things independently without the consent of the other

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authors, you can sell outright your joint ownership to a 3rd party.

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So, now you're suddenly in a collaboration with someone that you might not even know.

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And, of course, you can well, because you can create derivatives.

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That means you can modify that work.

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You created together for your own uses and license it to other people and so

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the 1 restriction here is that you can't.

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License exclusive rights to the work.

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So, let's say you collaborated to write a book and then even

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though you could license.

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Not exclusively the rights to that book, you couldn't license,

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exclusive rights to that book.

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So that's why.

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We want to make sure we're really clear about, what we're doing

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when we're creating collaboration.

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And to be clear, this is the default under the US copyright law, which

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is why we want to make sure we have agreements in place to avoid

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this and ignore my scratchy voice.

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Just it's okay.

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So how does a joint work, how does it get created?

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So it is created when each party makes a copyrightable contribution to the

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final work and all of those contributors intend that contribution is merged

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into an inseparable unitary whole.

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let's talk about contribution first.

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So in order for something to be copyrightable.

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we talk about this a lot.

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It has to be original created by human and have some, degree of creativity.

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It doesn't need to be, unique and innovative, but it needs to be

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creative and then put in fixed form.

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But we're assuming that we're creating a work that's in writing,

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or that's otherwise in fixed form.

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so long as it meets those parameters.

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Fairly low stand us and low standards is the wrong way to put it.

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But basic standards, the contribution would be copyrightable.

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And so we would meet the 1st element of creating a joint work.

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Each party creates something that is copyrightable.

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So, let's say.

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One person, well, the example I used last month, I'll use that for

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just a 2nd, where, 1 party created the text to a children's book

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and the other party created the illustrations to the children's book.

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And so each of them, the text and the illustrations are each copyrightable.

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And then for part 2.

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That they intended them to be merged into an inseparable unitary whole, like,

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obviously, when we're talking about like a children's picture book, the pictures

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and the texts are all kind of inseparable.

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Right?

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And so the intent is to create a joint work in that example.

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So I want to use an example that would apply to perhaps

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example of something that's.

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You've come across in your own business, and here I'm writing a book about the

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importance of intellectual property in creating a business that can scale.

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And let's look at 2 circumstances of, creating an intellectual property.

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Unintentional collaboration.

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first, let's say I hire a translator to create a Spanish

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language version of my book.

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So I am presenting my copyrighted work, right?

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I'm hiring him.

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I am telling him, I need this by this deadline.

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This is how much I'm going to pay you.

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These are the milestones.

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And he'll have An invoice that, invoices me and, tells me how

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many revisions, there will be.

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And everything happens the way it should be.

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He creates the translation.

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He, makes, all the revisions I asked him to make.

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And then at the end we have our beautiful Spanish language version of my book.

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However, I don't have a contractor agreement in place with them.

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I might have an invoice.

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But, I don't have a contractor agreement in place with him that

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talks about who owns the right in that Spanish language version.

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So, do we have a joint work?

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So let's go back to this.

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Each person makes a copyrightable contribution.

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I made my contribution of my book.

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The translator made the contribution of the Spanish language translation.

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Now, is that original?

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there are people will debate this, but generally it is found that translations

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are original and creative because it's generally not as simple as, sticking

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it through some sort of translator.

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And the same intent comes through that there is some creativity required

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to make sure that, certainly a book about intellectual property, you can't

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just do a word for word translation make sure that the understanding

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and the intent is maintained.

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if you think about the translation of a poem, which I was thinking about

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this, I'm like, how would you even translate a palm, translating the Iliad?

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I mean, my goodness.

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so there's certainly creativity involved in there that would rise to the level of.

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A copyrightable contribution.

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So I've got two people who have made copyrightable

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contributions to the final work.

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And it is the intent that is merged into an inseparable unitary whole, not my

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English language version, but the Spanish language version is a inseparable whole.

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And so what I have done by not having an agreement in place with my

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translator, Even though I hired him and paid him is I have created a joint

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work in that Spanish language version.

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It is a, jointly owned by me and my translator.

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that's obviously a huge problem for the reasons that we mentioned.

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Now, let's go to my second example.

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So here I've got my book and like many business books, you will have

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interspersed in there some real life examples of clients and things like that.

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So I hire a ghostwriter to interview my clients and kind of write

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those stories that are going to be interspersed within my book.

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And like my translator, hopefully I would never do this, but in this example,

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once again, I've hired my ghostwriter.

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we agree that, she's going to interview 10 clients and that each of

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the stories will be 300 words or so.

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and that, I will pay her, why, and she'll deliver them by Z.

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All goes as planned.

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Who owns my, original English language book after this?

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So, let's go back.

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Each has made a copyrightable contribution.

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I have my draft.

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Pre story insertion.

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And then I have the, stories that my ghostwriter has written,

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and it is intended that this all become part of that same book.

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It is being merged into my book interwoven within in my business book.

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So what have I done?

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I have created an Unintentional collaboration where my book is now

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jointly owned with my ghost writer.

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And so you might be asking, well, what if, it's a hundred page book, 80 of

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the pages were your original, draft.

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20 of the pages are from the ghost writer.

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So is it 80, 20?

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No, because we talked about, we covered already that each joint owner

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owns 100 percent of the copyright.

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So my ghostwriter could, if she never wants to work again, could,

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take my book and license it.

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not exclusively to a 3rd party and so it doesn't matter, how

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much someone contributed to it.

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It is , the copyrightable contribution and the intent to merge it into a single

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hole that drives whether or not you created a Joint ownership in the work

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and so, as ugly as that is, and is very obviously, I mean, it's a disaster.

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Honestly, it would be a disaster.

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But, if we are land in the, world of joint ownership.

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if one does act unilaterally and licenses, does that not exclusive license, they

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do have to split it with the other joint owners so they can run off and

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license it and then pocket the money.

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It would be split equally among the joint owners.

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Again, this assumes that this is the default and no agreement is in place.

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And as I mentioned that you can't, grant exclusive rights or sell the

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whole work outright without the consent of the other joint owners.

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it is super important before any creative work begins that you have

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your contractor agreement in place.

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Do not let fear of contract stop you from doing this.

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I mean, it does not need to be complicated at all.

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I am of the school that the simpler it is, the better, is because I

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want everyone to understand it.

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And, I want my contractors agreements to be pretty simple because I don't

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ever want them to feel like they have to go get a lawyer in order

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to sign my contractor agreement.

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it does not need to be complicated, but it does need to have some magic

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language in there about the ownership of the intellectual property rights.

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And I'm realizing now, I do not have a slide about that magic language, but.

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I'm happy to provide it to anyone who asked for it, but basically we want to

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make sure that no matter how simple our agreement is, we will have language in

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there about who owns the intellectual property rights in the deliverable.

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So, in my translator agreement, I would have language in there that says that.

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the client that the client will own 100 percent of the

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intellectual property rights.

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In the deliverable, which is the Spanish language version.

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if you've been around here a while, you know, we have the work for hire language

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and the assignment language that which is belts and suspenders to make sure that you

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end up with all the rights and the same would apply to my ghostwriter as well.

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with that, I would be happy to take any questions.

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You could always find me on LinkedIn, which I'm assuming

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is where you are watching this.

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if we're not connected already, please feel free to connect with me.

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but this QR code, this is kind of fun.

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It's my first time using this and, it takes you to sign up for my newsletter.

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I believe, so I do have a weekly newsletter where I give additional, tips

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and strategies regarding building your business legally, safely and profitably.

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So, again, if you have any questions, feel free to reach out.

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Let's see.

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I do have a.

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One here, I find that contractors take advantage when there isn't a contract.

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They're looking for loopholes.

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Yeah.

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So if you are the client and you are engaging contractors, you need

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to take advantage of the contract.

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You're the one who has the most to lose here.

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So make sure you're using a contract.

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It can be very simple, as I mentioned.

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again, if it's simple, there should not be any loopholes.

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one of the things I did not mention is that, while copyright law says,

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know, if I don't have an agreement in place, then we are joint owners.

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And that is the case.

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If it comes to it at the end of the day, most people who don't understand that they

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feel that if I was paid for something that my client owns it, and that usually holds.

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I imagine there's lots of, um, The joint works out there in the

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world that people aren't aware of.

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but again, hopefully the relationship is strong enough and their reputation

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in the marketplace is strong enough that they aren't looking to take advantage

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that they want to have repeat business.

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They want to have referrals.

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and so hopefully, that will keep everything kind of civilized.

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All right.

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Thanks again.

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Enjoy the rest of your day.