Who Owns What When NYC Creatives Work Together
If you are a working artist, writer, musician or performer in Brooklyn or elsewhere in NYC, you have likely collaborated or been approached to collaborate on a project with another creative. Things like co-writing songs, illustrating a book for authors, co-hosting podcasts, or drafting and painting murals are all examples of collaborative efforts. Collaborations often start out as “handshake” or non-contractual agreements, which can get murky if the relationship changes or if the project begins earning income.
When you invite someone to collaborate with you on a project, or you’re invited to join another creative, it can be hard to start the conversation of what that relationship looks like financially, or to determine what should go in a collaboration agreement or “split agreement.” But having the conversation early is worth it to prevent confusion or frustration after the project succeeds, and it also is the best way to set clear expectations and support the growth of the creative relationship.
The Impact of Having a Written Agreement
US copyright law says that when two or more people work together to create a single product, the work may be considered a “joint work.” The collaborators are considered by default to be co-owners of the copyright in the work.
The default rule generally assumes:
1. Co-owners share ownership equally, even if one person contributed to the work more than the others;
2. Co-owners can use or license the work without the other’s permission (but potentially would still owe the other a share of the profits); and
3. Exclusive transfers or licenses require the agreement of all owners.
Determining whether a work is a “joint work” and whether the creators are co-owners is fact dependent, and it typically depends on what each person contributed and whether anyone intended to be a single owner or a co-owner. Having a contract in place reduces confusion about what everyone’s relationship to the work, and what their rights are, helps avoid arguments about how the work gets published, sold, or licensed later.
Common Aspects of Split Agreements
A split agreement is a contract where collaborators agree on how ownership, credit, and income from a shared work will get divided. Depending on the facts of each specific collaboration, a well-drafted split agreement could and should address the following:
Ownership percentages;
When and how income will be collected, divided, and paid out;
Credits and attributions, including names, titles, and order, and where credits will appear;
Who, if anyone, has primary decision-making authority, including decisions about sales, licensing, adaptations, and releases;
The process for a collaborator withdrawing from a project, including the need to terminate that person’s involvement due to lack of contribution;
What rights, if any, a collaborator’s estate may have in the project if a collaborator passes away; and
How disagreements get resolved, including through mediation, arbitration, or making claims in court.
If the project is a commission, the split agreement should also be checked for consistency with the primary contract from the client.
It is best practice to have these agreements in writing before the work is finished and released. These conversations are much easier when there is less at stake. If roles change during the course of the work, it also makes the agreement easier to modify later on, as opposed to having to figure out these terms while production is already in process.
Frequently Asked Questions
Does an Equal Split Mean Everyone Contributes Equally?
This isn’t necessarily the case. Co-owners are free to negotiate and put in writing whatever terms they think are appropriate. While it is true that co-owners are presumed to share equally, different percentages for different people are quite common and depend on a variety of factors, including skill level, name recognition, contributions, and other elements. People may choose splits based on contribution while others choose an equal split because they favor simplicity.
Does the Agreement Need to be Formalized?
Text messages or emails about the terms of the split can be helpful if there is an issue that requires a determination of who owns what portion of the project. However, they are really only helpful when a dispute arises and there is some effort to resolve it—meaning there is no prior agreement in place. Text messages and emails are not a substitute for a signed agreement.
In general, transferring copyright ownership requires a signed written document. Informal messages often leave important questions unanswered.
Can We Make an Agreement After the Work Was Already Released?
Yes. Collaborators can sign split agreements after the work is released. It is always easier to work out details of an agreement before a dispute arises. So, even if you already released the work, if you are working together well, it still makes sense to have a written agreement in place.
Can I Reuse the Portion of the Work I Contributed?
The best way to be sure that your contribution remains yours, and that you can re-use it for a different purpose later on, is to have an agreement that explicitly spells out your right to reuse your contribution, and under what conditions.
Why Having A Lawyer Helps
Having a lawyer draft and review a split agreement can be helpful. Often the cost for review of these terms sheets is minimal, and it can protect your rights and save an expensive headache if a dispute arises. Especially for projects involving ongoing income, licensing details, or commissions, having an attorney review these agreements is worthwhile.
If you are an NYC-based writer, musician, or visual artist starting a collaboration, Lindsey Rubinstein can help you put your split agreement in writing in a way that works for everyone involved.
Expand Law maintains an active blog which provides general legal information. Under no circumstances shall reviewing this blog constitute legal advice. If you are looking for legal advice specific to your issue, please contact lindsey@expandlawpllc.com for a free consultation.
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