LEGALLY SPEAKING

Collaboration and intellectual property - Paul Sugden

My next series of articles for Textile Fibre Forum will deal with a tricky area in textiles - that of Collaboration in Creation.

Copyright, as it concerns the textile creative, does so predominately in this area of law. Copyright law recognises that works CAN be created by more than one author under the concept of “work of joint authorship.” Joint authorship here does not mean what is commonly thought of by the public: “that song” where the music is written by one artist and the lyrics by another - this is not a work of joint authorship, as the author of the lyrics has copyright in the lyrics and the composer of the music has copyright in the composition.

Joint authorship in terms of copyright means that the contribution to the making of the work has been that of an author, meaning that the person so designated has been responsible to some degree in producing the work in a “material form” (the form from which it can be reproduced). Kenrick v Lawrence (1890) 25 QB 99.

Collaboration in the textile world is also about the discussion of ideas, the provision of comments, and the giving of advice on the development of the work. These essentially intellectual issues may contribute to the final form of the work and can entitle a person to be considered as a joint author.

Courts have recognised that authorship is now just an issue of who has “pushed the pen” for a drawing or a literary work, but “authorship” also includes the skill in creating, selecting and gathering together the detailed concepts, data and emotions which the words or lines have fixed in some tangible form which is protected.

In the textile world the contributions made by individuals to a joint project may not constitute more of the ideas than the physical translation, but can, if they form part of the creativity recognised by copyright, be protected as a joint author. But it would need to be more than minimal involvement or minimal supervision of the process or project.

In a textile environment, if you are being part of a joint collaborative work, then the best way to deal with it is to have an agreement in advance. Consider the Cardinian Embroidery (Textile Fibre Forum issue #89, pp. 36 & 37), a project which involved a large number of individuals, 219 in total, who are all accredited in a book about the project for the individual pieces that they made or embroidered. For purposes of the article in Textile Fibre Forum, Eleanor Taylor is credited as the Art Director and Coordinator of the project, but for each individual work all names are given that relate to the designing and/or making of works shown. Great care was taken over this process.

Even if you are only one of two people involved in a joint work, the best idea is to have an agreement set out, before the event, that allows for your acknowledgement and recognition as a joint author. It is better to have the fight about who is really an author before the work commences, rather than after the work is produced.

In practice I had an individual who said they had contributed as a joint author to a play. When they were given a copy of the script, their contribution was identified as a few words spread throughout the play, which did not give rise to an amount for joint authorship. The individual negotiated in their contract a right to be accredited as a person assisting the writers of the play and this accreditation right was for the first production. The first production had the accreditation on the flyers and programs, but all subsequent productions (when the show became a success) did not have the accreditation as this was not required by the contract. There was no breach of contract and no right in copyright for a remedy.

So my advice, when you are dealing with joint ownership issues, is to document what you want and agree to before you start the work!!!!!!! This can be in the form of a written letter , signed by all participants, which should state who will be the authors and what additional rights the individuals who assist have in relation to accreditation.

In the next issue we will explore rights of joint owners and rights of accreditation where the work is derived using techniques or styles of other textile creatives.