In a move delighting twenty-something women everywhere, Oscar-winning Jennifer Lawrence (Silver Linings Playbook, American Hustle, The Hunger Games) announced that she and comedian Amy Schumer are collaborating on a screenplay. Schumer, who wrote and starred in the 2015 summer hit Trainwreck, and known for her sketch-comedy show, Inside Amy Schumer, became friends with Lawrence after she saw Trainwreck and the two began e-mailing. Since then, they’ve hit up the Hamptons, Billy Joel concerts in Chicago, and of course, are writing a movie where they’ll play sisters.
The question is, what kind of rights will each have in the screenplay? A joint work, according to the Copyright Act, is a work prepared by two or more authors (co-authors) with the intention that their contributions be merged into inseparable or interdependent parts of a unitary whole. The co-authors share a copyright in the work as a whole, functioning as tenants-in-common. This means that both authors have the right to exploit the completed work without permission from the other author. However, this right to exploit is subject to an accounting to the other co-authors; an accounting means that any author who exploits the work must share the profits equally and “account” to the other copyright owners. What this means, functionally, is that if Jennifer Lawrence decides to sell the screenplay and all its rights to Paramount Pictures for $1 million, she has to give Schumer $500,000 of it, and Schumer still has the right to try and get the picture made elsewhere (although this entire scenario is bad business all around).
However, in practice, co-authorship and proving a joint work requires showing more than the mere intention standard stated the Copyright Act. A joint work requires (1) each author to make an independently copyrightable contribution; (2) artistic control over the work; and (3) a shared intent to make a joint work. When Spike Lee co-wrote, directed, and co-produced the Oscar-nominated Malcolm X in 1992, he had some issues with his “Islamic Technical Consultant,” Jefri Aalmuhammed, claiming to be a co-author on the script. Aalmuhammed was brought on board because of his knowledge of both Malcolm X and Islam, and suggested several script edits eventually used in the movie, as well as helping to edit the movie in post-production. Aalmuhammed wanted a writing credit, and, thus, a greater share of the profits. However, nearly a decade later, the Ninth Circuit Court of Appeals stated in Aalmuhammed v. Lee, that although Aalmuhammed’s contributions were independently copyrightable, he was not a co-author because (1) he had no artistic control over the movie, and (2) Lee never intended for him to be a co-author. 202 F.3d 1227 (9th Cir. 2000). Furthermore, the Court found that Aalmuhammed’s contributions were a work for hire, meaning that Lee, as the one who commissioned Aalmuhammed, owned their copyrights.
There are three theories of authorship in copyright law. There is authorship based on (1) conception; (2) execution; or (3) economics. So, (1) conception refers to the idea and fixation of a work; (2) execution refers to the creation of photographs and videos, which are automatically copyrightable per the copyright act based on their mere creation; and (3) economics refers to works for hire, where a person or organization may finance the creation and dissemination of a work, leaving the artist who physically created the work compensated, but the copyright belonging to the financier. So, a corporation, or someone entirely uninvolved with the creative process, may be an author under copyright law based on the work for hire theory.
A work for hire comes about in one of two ways, it is either (1) a work made by an employee within the scope of their employment, or (2) a work specially ordered or commissioned as one of nine specific categories in the Copyright Act. And this is the really important thing for commissioned works, besides falling into one of the nine categories; the commissions will only be considered a work for hire if the parties expressly agree in a written instrument signed by both parties that the work shall be considered a work for hire. In the Seventh Circuit, this writing must precede the creation of the property, but in the Ninth and Second Circuits, the writing can come afterwards. This can cause issues because artists usually are paid on commission, or on a partial-commission basis. That is, they receive a portion of their payment when they are hired and the rest when a project is completed. What this means functionally is that an artist may start a project believing they will retain the copyright, only to be presented with a work for hire agreement at completion of their work. Despite this potential for abuse using the standard articulated in the Second and Ninth Circuits, all other circuits are silent as to when the writing must be completed.
So what does this mean for Lawrence and Schumer? These two savvy businesswomen have proven that they know what they are about, but things can become tricky when working with friends. Nobody wants to be a downer and start talking “technicalities” when the creative juices are flowing and everybody is having a good time, but there is no guarantee how long the good times will last. This is why it is important to get a contract or written statement of intent drafted as soon as possible when collaborating in joint-works. Good business sense, though not always fun, can avoid major issues down the road and save Lawrence and Schumer both money, time, and maybe even their friendship. This author would not be surprised if they already have something written up, but regardless, cannot wait to see what these two stars can come up with!