Jacob Gibbs
If the saga of Taylor Swift’s crusade to reclaim her masters has taught us anything, it’s that ownership is paramount in the music industry. Conversely, stripping artists of their ownership is a Faustian bargain, where short-term opportunity comes at the price of long-term control. Today’s greatest hits are assembly lines of creativity. Notwithstanding this, copyright law turns a blind eye to collaboration and wrongfully treats these songs as the product of isolated creation. Joint authorship is a particularly powerful doctrine in music because, unlike much of the industry, it’s not determined by contract but is a determination of law.1 As a result, courts pay greater attention than usual to the nature of the parties' collaboration.
To examine whether the potential joint authors are validly joint authors, courts look at whether each author contributed original expression and mutual intent that both parties be joint authors. Following the Ninth Circuit’s landmark decision in Aalmuhammed v. Lee, the Ninth Circuit, a dominant copyright circuit given its Hollywood nexus, has adopted a narrower approach: joint authorship requires copyrightable expression, mutual intent, and control, as well as audience attribution and industry norms.2 This is concerning because, even if lesser-known co-writers easily satisfy the core requirements of original copyrightable expression and mutual intent, the additional factors of control, audience attribution, and industry norms operate more as a nearly impossible standard than simply as a threshold and a filter.3
The status of joint authorship is crucial in the copyright realm because certain categories of rights attach to and flow from the author, most notably termination rights.4 While contracting into joint ownership may seem like a quick fix to the mess that is resolving joint authorship claims, it cannot be dispositive because it doesn’t account for mutual intent, though it may be a single factor courts analyze alongside others.5 What the law cares about in joint authorship is the intention of the parties at the time the work was created. This intention must be coterminous with and parallel to the creative process. A contract alone, though, cannot be dispositive because parties only ever enter into it before (or in some cases after) the creative process.
Courts are highly reluctant to recognize joint authorship in the music industry, even where original expression and mutual intent are easily discerned. This resistance likely comes from courts’ unwillingness to get into the weeds of the creative process and parse through evidence regarding who fractionally created what, explaining why the Ninth Circuit added the elements of control, audience attribution, and industry norms.
The Ninth Circuit’s addition of these elements facilitates courts’ reluctance to scrutinize parties’ evidence of collaboration in the creative process by making it harder for co-writers to claim joint authorship. However, the Court’s holding in Aalmuhammed and courts’ perpetual failure to adequately allow co-writers to claim joint authorship are a violation of Congress’s intention in its drafting of the Copyright Act of 1976.6 Pursuant to the Act, the Ninth Circuit and courts nationwide ought to relax these judicially created hurdles to proving joint authorship by embracing the tenancy-in-common approach to joint authorship. Under this framework, there isn’t equal ownership among all contributors, but rather an ownership stake based on the different proportions of contributions.
As we enter 2026, the writing process is highly documented: recording sessions are scrutinously recorded (no pun intended), and voice memos and text messages create a lasting record. With the steps of the creative process so well documented, the ownership stake of each contributor can be more readily ascertained for contributions by artists, writers, and producers. This approach requires courts to work slightly harder on the front end but is highly administrable. In practice, the clearer baseline will push most disputes toward settlement and more thorough ex ante contract determinations that equate contribution to ownership stake. Under this approach, contract law can serve as a more reliable basis for determining rights, using predetermined criteria based on evidentiary records rather than cutting out co-writers at the outset.
By treating joint authorship in the music industry as a tenancy in common, the law will be far more willing to grant co-writers a stake in authorship and reward co-writers for their contributions, further encouraging collaboration in the music industry. This step can only be taken if courts move away from the fabricated and preposterous elements of control, audience attribution, and industry norms that Aalmuhammed added to the determination of joint ownership.7
[1] 17 U.S.C. § 101 (2018) (defining joint work); 17 U.S.C. § 201(a) (2018).
[2] Aalmuhammed v. Lee, 202 F.3d 1227, 1231 (9th Cir. 2000).
[3]Aalmuhammed, 202 F.3d at 1234.
[4] 17 U.S.C. §§ 203, 304(c) (2018).
[5] Childress v. Taylor, 945 F.2d 500, 507–08 (2d Cir. 1991).
[6] H.R. Rep. No. 94-1476, at 121 (1976) (“coowners . . . treated generally as tenants in common”); 17 U.S.C. § 201(a) (2018).
[7]Aalmuhammed, 202 F.3d at 1234.