Re: Editors and Joint Authorship [was: the purpose of law reviews]

From: Tyler Ochoa <tochoa[_at_]>
Date: Fri, 15 Jun 2001 09:47:24 -0700

and >>> greglas[_at_] 06/14/01 09:22AM >>> replied: Officially, no on both counts. But it is an interesting question. A good editor of any type of written work won't just check your typos and punctuation, but will help improve the work. A lot depends on the willingness of the author to have the work improved -- if the author is kind, they'll thank the editor for the helpful suggestions publicly or privately, but I've never heard of an editor getting credit (or copyright) for revisions. Has anyone else heard of such a thing? A case cite perhaps? I imagine some ambitious editor out there must have tried to claim copyright in a heavily edited work. <<<<<

In Childress v. Taylor, 945 F.2d 500 (2d Cir. 1991), the Court says: "The wording of the statutory definition [of a joint work] appears to make relevant only the state of mind regarding the unitary nature of the finished work--an intention 'that their contributions be merged into inseparable or interdependent parts of a unitary whole.' However, an inquiry so limited would extend joint author status to many persons who are not likely to have been within the contemplation of Congress. For example, a writer frequently works with an editor who make numerous useful revisions to the first draft, some of which will consist of additions of copyrightable expression. Both intend their contributions be merged into inseparable parts of a unitary whole, yet very few editors and even fewer writers would expect the editor to be accorded the status of joint author, enjoying an undivided half interest in the copyright in the published work. Similarly, research assistants may on occasion contribute to an author some protectible expression or merely a sufficiently original selection of factual material as would be entitled to a copyright, yet not be entitled to be regarded as the joint author of the work in which the contributed material appears. What distinguishes the writer-editor relationship and the writer-researcher relationship from the true joint author relationship is the lack of intent of both participants in the venture to regard themselves as joint authors."

See also Thomson v. Larson, 147 F.3d 195 (2d Cir. 1998), in which the court, on similar grounds, rejected a claim of joint authorship by the dramaturge on the musical "Rent."

Also, it is worth noting that editors are often employees of publishers. If the editor was regarded as a joint author, then under the work-made-for-hire doctrine the publisher would become the joint author and would be able to publish the work without the permission of the original author, which obviously would be unfair.

Tyler T. Ochoa
Associate Professor
Whittier Law School Received on Fri Jun 15 2001 - 16:52:24 GMT

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