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For copyright purposes, determining whether a work has a single author or joint authors is important for a variety of reasons. Perhaps the most significant legal consequence of joint authorship is joint ownership, under which the authors enjoy equal and undivided ownership of the copyright, allowing each to exploit the work freely, subject to a duty to account to the others for a ratable share of the exploitation profits. Absent an agreement to the contrary, each author of a joint work has an equal claim to those profits and an equal right to exploit the work, even if the authors' contributions were not equal.

This legal consequence has led most courts to proceed with caution in assessing joint authorship claims by putative co-authors, at least where those claims are disputed by a party asserting sole authorship of the work. Although the Copyright Act of 1976 provides a statutory definition of “joint works,” federal courts have expressed concern over the breadth of that definition, and have created several additional tests for determining which creative contributions rise to the level of joint authorship.

This Article focuses on a particular approach to narrowing the definition of joint works, which has become firmly established as the law of the Second Circuit, and which now appears to have been adopted by the Seventh and (though perhaps to a lesser extent) the Ninth Circuit as well. Because these circuits hear the majority of copyright appeals, and thus are particularly influential in copyright law, their agreement on this standard makes it highly likely that other circuits will follow suit.

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50 Emory L.J. 193 (2001).