Section 2.17

• Jurisdiction: New York

V. CO-PUBLISHING AND ADMINISTRATION

Songs are often owned by two or more publishers. Publishers encourage and arrange writer collaborations. As discussed above, when two or more writers initially collaborate to create a song, they create a "joint work."¹⁸⁶ The authors of a joint work are the initial co-owners of the copyright in the work.¹⁸⁷ When each writer transfers his or her rights in the work to a publisher, the publisher becomes the owner of that writer's share of the copyright in the song and of all rights under the copyright in the song. If each writer transfers his or her share to a different publisher, then the publishers become the co-owners of the copyright and of all rights in the song.

When two or more writers create a joint work, each writer, as co-owner of the copyright, owns an undivided one-half interest in the copyright of the entire song. In the absence of a written agreement, the writers are legally considered to be tenants in common.¹⁸⁸ The fundamental elements of tenancy in common as applied to writers of joint works and to the publishers to whom the writers transfer their original ownership of copyright are as follows:

1. Each writer owns a pro-rata share of the song (the joint work) equal to the number of writers who created the song, regardless of how small a creative contribution the writer makes.

2. Each writer has the right to grant nonexclusive rights in the entire song to a third party, without the knowledge or consent of the other writer(s) (e.g., grant a mechanical license to a record company).

3. The nonexclusive grant of rights is limited to exploitation in the United States. In countries outside the United States, generally the law requires consent of all copyright owners for a grant of rights, even for nonexclusive grants. For example, a nonexclusive motion picture synchronization license for use of a co-owned song in a U.S.-produced film distributed internationally will require consent of all owners to cover the grant of rights outside the United States.

4. The grantor writer who receives payment for exploitation of the song holds the receipts in trust for the other writers. The grantor writer must account and make payment to the other writers for profits he or she derives from the grant in their proportionate shares of the work.¹⁸⁹

5. No co-writer can sue the grantor writer for copyright infringement because a creator cannot infringe his or her own work.

6. There is no right of survivorship.

Under the tests...