Eps 88 Unintentional Collaboration: How to Accidentally Give Your Contractors Co-Ownership of Your Work Transcript

Erin Austin: Hello, everyone. Welcome to this month's LinkedIn live. I do these every last Wednesday of the month. I can't believe it's going to do that at noon Eastern. These are recorded and they can be found in three places. Uh, here, of course, I'm linked in at my profile, uh, on the Think Beyond IP YouTube channel.

Erin Austin: And this will also be turned into a podcast episode of the Hourly to Exit podcast, which you can find, uh, wherever you like to listen to my podcast. And so depending on how cleanly this goes, uh, This will be the version, otherwise I will probably re record it. So please feel free to say hi at any time.

Erin Austin: Also, uh, put your questions or comments in the chat at any time. I might answer them at the moment or I will save them to the end of my spiel. So I will talk to you for about 15 to 20 minutes, depending how quickly I talk. Um, and then after that, all the Q and A time that you need. And just a brief disclaimer before we get started that this is legal information, not legal advice, and it does not create an attorney client relationship.

Erin Austin: And please do not share any confidential information in the chat that it will be. Everyone will be able to see it. And if you have any questions about your specific circumstances, then you should hire a lawyer. All right, great. So with that, we this is basically a follow up from last month's linkedin live.

Erin Austin: So last month I, uh, covered a collaboration when we want to collaborate with a colleague. But what the consequences are if we don't have an agreement in place. And so when I was titling this, I know it says accidental collaboration. I'm pretty sure on LinkedIn live, uh, you know, it kind of happened organically during the conversation with someone.

Erin Austin: They said, they mentioned a circumstance like, Oh, that's an accidental collaboration. And so that became the title of this live. And then as I was putting these slides together, I was just looking at, Oh, is that, you know, a term of art. Um, and it turns out accidental collaboration is a term of art, but it's considered a good thing.

Erin Austin: So what happens when you are, you know, hanging meeting in person, you know, an argument for having in person work environments that you can just kind of organically collaborate with your colleagues. Whereas the unintentional collaboration is the bad kind where we, uh, believe that we're hiring a contractor to work on, uh, some of our work, but we don't have an agreement in place and we think we own everything because we hired them to create these changes or add this content.

Erin Austin: And, uh, but, but when we don't have the agreement in place, we can end up with. Uh, an unintentional collaboration. So that is what we are going to talk about today. So I'm not going to go over, like, uh, all of the details of what collaborations are, um, you can catch up, um, and you don't need to see last month to understand this 1.

Erin Austin: But generally, the term collaboration is not a copyright term, it's a general term that we use when we talk about two or more people working together to, uh, a similar end, whether it's a creating a new work or, um, putting together a summit or creating a new company. Those are also called collaborations.

Erin Austin: And, uh, but under copyright law, the way we look for, uh, the, the, what, how copyright law looks at collaborations, Is that it calls them joint ownership of a work. And so there's a couple of different terms. You'll find it under co ownership, co author, joint author, joint authorship, co copyright, joint work.

Erin Austin: Those all are the result of a collaboration. In the creation of a copyrighted work and the consequences of being one of those things that join work, co copyright, all those, is that, and it's a little bit weird, but each party owns 100% of the entire work. So it's not that one. You know, there's two of you.

Erin Austin: One owns 50%, the other owns 50%. There's three of you. One owns the third, a third, a third. Each collaborator owns 100 percent of the work. So what does that mean? That means that each party to the collaboration can exercise 100 percent of the copyrights, um, on their own without consent of the other parties.

Erin Austin: And so when we think about what Uh, copyrights we have, what are the bundle of rights that we have when we are a copyright owner? It's the right to use it, to display it, to perform it, to distribute it, to make copies of it, and to authorize derivatives of it. So if I am one of several, uh, joint owners, each one of us Can do all of those things.

Erin Austin: Some, some, or all of those things independently without the consent of the other offer other authors, you can sell outright your joint ownership to a 3rd party. So, now you're suddenly in a collaboration with someone that you might not even know. And, of course, you can well, because you can create derivatives.

Erin Austin: That means you can modify that work. You created together for your own uses and license it to other people and and so the 1 restriction here is that you can't. License exclusive rights to the work. So, let's say you collaborated to write a book and and then even though you could license. Not exclusively the rights to that book, you couldn't exclude license, exclusive rights to that book.

Erin Austin: So that's why. We want to make sure we're really clear about, um, what we're doing when we're creating collaboration. And to be clear, this is the default under the US copyright law, which is why we want to make sure we have agreements in place to avoid this and ignore my scratchy voice. Just it's okay. So how does a joint ownership Uh, how does a joint work, how does it get created?

Erin Austin: So it is created when each party makes a copyrightable contribution to the final work and all of those contributors intend that their, their contribution is merged into an inseparable unitary whole. And so let's talk about copyright, copyrightable contribution first. So in order for something to be copyrightable.

Erin Austin: You know, we talk about this a lot. It has to be original created by human and have some, uh, degree of creativity. It doesn't need to be, you know, unique and innovative, but it needs to be creative and, uh, and then put in fixed form. But we're assuming that we're creating a work that's in writing, or that's otherwise in fixed form.

Erin Austin: And so, uh, so long as it meets those parameters. Fairly low stand us and low standards is the wrong way to put it. But basic standards, um, the contribution would be copyrightable. And so we would meet the 1st element of creating a joint work. Each party creates something that is copyrightable. So, let's say.

Erin Austin: One person, well, the example I used last month, I'll use that for just a 2nd, where, um, 1 party created the text to a children's book and the other party created the illustrations to the children's book. And so each of them, the text and the illustrations are each copyrightable. And then for part 2. That they intended them to be merged into an inseparable unitary whole, like, obviously, um, when we're talking about like a children's picture book, you know, the pictures and the texts are all kind of inseparable.

Erin Austin: Right? And so the intent is to create a joint work in that example.

Erin Austin: So I want to use an example that would apply to perhaps an example of something that's. You've come across in your own business, and here I'm writing a book about the importance of intellectual property in creating a business that can scale. And let's look at 2 circumstances of, uh, creating an intellectual property.

Erin Austin: Unintentional collaboration. So first, let's say I hire a translator to create a Spanish language version of my book. So I am presenting my copyrighted work, right? I'm hiring him. I am telling him, you know, uh, I need this by this deadline. This is how much I'm going to pay you. These are the milestones. And he'll have a An invoice that, you know, invoices me and, um, you know, tells me how many versions I get, how many revisions, um, there will be.

Erin Austin: And everything happens the way it should be. He creates the translation. He, um, makes, uh, all the revisions I asked him to make. And then at the end we have our beautiful Spanish language version of my book. However, I don't have a contractor agreement in place with them. I might have an invoice. But, I don't have a contractor agreement in place with him that talks about who owns the right in that Spanish language version.

Erin Austin: So, do we have a joint work? So let's go back to this. Each person makes a copyrightable contribution. I made my contribution of my book. The translator made the contribution of the Spanish language translation. Now, is that original? Um, you know, there are people will debate this, but generally it is found that translations are original and creative because it's generally not as simple as, you know, sticking it through some sort of translator.

Erin Austin: And the same intent comes through that there is some creativity required to make sure that, you know, certainly a book about intellectual property, you can't just do a word for word translation and make sure that the understanding and the intent is maintained. Uh, you know, if you think about the translation of a poem, which I was thinking about this, I'm like, how would you even translate a palm, you know, translating the Iliad?

Erin Austin: I mean, my goodness. Um, so there's certainly creativity involved in there that would rise to the level of. A copyrightable contribution. So I've got two people who have made contribute, uh, copyrightable contributions to the final work. And it is the intent that is merged into an inseparable unitary whole, not my English language version, but the Spanish language version is a inseparable whole.

Erin Austin: And so what I have done by not having an agreement in place with my translator, Even though I hired him and paid him is I have created a joint work in that Spanish language version. It is a, uh, jointly owned by me and my translator. And, um, that's obviously a huge problem for the reasons that we mentioned.

Erin Austin: Now, let's go to my second example. So here I've got my book and like many business books, um, you will have interspersed in there some real life examples of clients and things like that. So I hire a ghostwriter to interview my clients and kind of write those stories that are going to be interspersed within my book.

Erin Austin: And like my translator, I hopefully I would never do this, but in this example, once again, I've hired my ghostwriter. Um, we agree that, uh, she's going to interview 10 clients and that each of the stories will be 300 words or so. And, um, and that, um, I will pay her, you know, why, and she'll deliver them by Z.

Erin Austin: All goes as planned. Who owns my, you know, original English language book after this? So, let's go back. Each has made a copyrightable contribution. I have my draft. Pre story insertion. And then I have the, uh, stories that my ghostwriter has written, and it is intended that this all become part of that same book.

Erin Austin: It is being merged into my book interwoven within my, my, um, in my business book. So what have I done? I have created an Unintentional collaboration where my book is now jointly owned with my ghost writer. And so you might be asking, well, you know, what if, uh, you know, it's a hundred page book, 80 of the pages were your original, uh, draft.

Erin Austin: 20 of the pages are from the ghost writer. So is it 80, 20? No, because we talked about, uh, we covered already that each joint owner owns 100 percent of the copyright. So my ghostwriter could, if she never wants to work again, could, uh, take my book and license it. Uh, not exclusively to a 3rd party and so it doesn't matter, you know, who, how much someone contributed to it.

Erin Austin: It is the, the copyrightable contribution and the intent to merge it into a single hole that drives whether or not you created a joint. Joint ownership in the work and so, um, as ugly as that is, and it is very obviously, I mean, it's a disaster. Honestly, it would be a disaster. But, um, if we are land in the, uh, the world of joint ownership.

Erin Austin: You know, if one does act unilaterally and licenses, you know, does that not exclusive license, they do have to split it with the other joint owners so they can run off and license it and then pocket the money. It would be split among, equally among the joint owners. Again, this assumes that this is the default and no agreement is in place.

Erin Austin: And as I mentioned that you can't, um, grant exclusive rights or sell the whole work outright without the consent of the other joint owners.

Erin Austin: And so it is super important before any creative work begins that you have your contractor agreement in place. Do not let fear of contract stop you from doing this. I mean, it does not need to be complicated at all. I, you know, I am of the of the, uh, school that the simpler it is, um, the better, you know, it is because I want everyone to understand it.

Erin Austin: And, um, you know, when I work with contractors. I want my contractors agreements to be pretty simple because I don't ever want them to feel like they have to go get a lawyer in order to sign my contractor agreement. Um, it does not need to be complicated, but it does need to have some magic language in there about the ownership of the intellectual property rights.

Erin Austin: And I'm realizing now, I do not have a slide about that magic language, but. Um, I'm happy to provide it to anyone who asked for it, but basically we want to make sure that no matter how simple our agreement is, we will have language in there about who owns the copyright, who owns the intellectual property rights in the deliverable.

Erin Austin: So, in my translator agreement, I would have language in there that says that. On the client that the client will own 100 percent of the intellectual property rights. In the deliverable, which is the Spanish language version. Um, if you've been around here a while, you know, we have the work for hire language and the assignment language that which is belts and suspenders to make sure that you end up with all the rights and the same would apply to my ghostwriter as well.

Erin Austin: And so, with that, I would be happy to take any questions.

Erin Austin: You could always find me on LinkedIn, which I'm assuming is where you are watching this. Um, if we're not connected already, please feel free to connect with me. Um, this slide is too small to read, but this QR code, this is kind of fun. It's my first time using this and, um, it takes you to sign up for my newsletter.

Erin Austin: I believe, so I do have a weekly newsletter where I give additional, um, uh, tips and strategies regarding building your business legally, safely and profitably. So, again, if you have any questions, feel free to reach out. Otherwise, I look forward to seeing you again next month. Thank you.

Erin Austin: Let's see. I do have a. One here, I find that contractors take advantage when there isn't a contract. They're looking for loopholes. Yeah. So if you are the client and you are engaging contractors, you need to take advantage of the contract. You're the one who has the most to lose here. So make sure you're using a contract.

Erin Austin: It can be very simple, as I mentioned. And if it's, again, if it's simple, there should not be any loopholes. Um, you know, one of the things I did not mention is that, you know, while copyright law says, you know, if I don't have an agreement in place, then we are joint owners. And that is the case. If it comes to it at the end of the day, most people who don't understand that they feel that if I was paid for something that my client owns it, and that usually holds.

Erin Austin: I imagine there's lots of, um, The joint works out there in the world that people aren't aware of. Um, but again, you know, hopefully the relationship is strong enough and the, their reputation in the marketplace is strong enough that they aren't looking to take advantage that they want to have repeat business.

Erin Austin: They want to have referrals. And, uh, and so hopefully, um, that will keep everything kind of civilized.

Erin Austin: All right. Thanks again. Enjoy the rest of your day.