505.2 Determining Whether the Work Is a Joint Work
The applicant – not the U.S. Copyright Office – must determine whether a work qualifies as a joint work, and as the legislative history explains, this determination should be based on the facts that existed when the work was created. See H.R. Rep. No. 94-1476, at 120, reprinted in 1976 U.S.C.C.A.N. at 5736; S. Rep. No. 94-473, at 103.
When examining a joint work, the Office applies U.S. copyright law, even if the work was created in a foreign country, created by a citizen, domiciliary, or habitual resident of a foreign country, or first published in a foreign country. The U.S. Copyright Act is the exclusive source of copyright protection in the United States, and all applicants – both foreign and domestic – must demonstrate that a work satisfies the requirements of U.S. copyright law in order to register a work with the Office.
Upon request, the Office will provide the applicant with general information about the provisions of the Copyright Act, including the statutory definition for a joint work, and will explain the relevant practices and procedures for registering this type of work. However, the Office cannot provide specific legal advice on the rights of persons, issues involving a particular use of a copyrighted work, cases of alleged foreign or domestic copyright infringement, contracts between authors and publishers, or other matters of a similar nature. 37 C.F.R. § 201.2(a)(3).
When completing the application, the applicant should provide the name of each joint author who contributed copyrightable authorship to the joint work. The Office takes the position that each joint author must contribute a sufficient amount of original authorship to the work. An author who satisfies this requirement may be considered a joint author, even if his or her contribution to the work is smaller or less significant than the contributions made by another author. By contrast, a collaborator who merely contributes a de minimis amount of expression is not considered a joint author. See Chapter 300, Section 313.4(B).
As a general rule, the registration specialist will accept the applicant’s representation that a work of authorship is a joint work, unless it is contradicted by information provided elsewhere in the registration materials or in the Office’s records, or by information that is known to the specialist. If the claim appears implausible, the specialist may communicate with the applicant or may refuse registration. Examples of factors that may indicate that a work does not qualify as a joint work include the following:
- Evidence that one or more of the authors did not intend to merge their contributions into a unitary whole.
- A work containing separate copyright notices for the authors’ respective contributions to the work (e.g., “text © Selena Banik, illustrations © Kieran Banik”).
- A work containing a number of separate and independent works, such as a book of photographs by different authors.
