Joint Authorship and Dramatic Works: A Critical History

Abstract

Dramatic works have played a central role in the evolution of joint authorship doctrine in copyright law.  Ironically, a genre that began as a highly collaborative enterprise has since become the focal point for increasingly narrow interpretations of joint authorship.  Indeed, the origins of today’s problematic joint authorship standard can best be understood through the lens of dramatic writing, as most of the leading cases on collaborative authorship have involved disputes over the authorship of plays.

The Anglo-American theater tradition is rooted in sixteenth-century England.  The explosive growth of professional theater in the sixteenth and early seventeenth centuries took place at a time when collaboration was ubiquitous, even among some of the most famous playwrights.  As the industry changed, however, a cultural preference for romantic authorship took hold.  In the centuries that followed, disputes involving dramatic works had a major impact on the development of concepts relating to collaborative authorship.  Dramatic works continued to play an outsized role in the leading cases on joint authorship under the Copyright Act of 1976.  By this time, however, the collaborative origins of Anglo-American theater were largely forgotten and a judicial bias in favor of romantic authorship led courts to disregard the statutory language in favor of judicially-imposed tests designed to defeat the claims of joint authors.

This Article examines the evolution of copyright law pertaining to collaborative authorship and finds that much of the core legal doctrine in this area arose from disputes involving dramatic works.  This fresh look at theatrical collaborations reveals a rich history that calls into question the modern judicial presumption that dramatic writing is the product of individual genius.  Examining the history of Anglo-American law’s response to collaboration in dramatic works offers valuable insight into the development of multiple concepts related to authorship—in particular, the rules governing derivative works, works made for hire, and joint works.  It also demonstrates that the jurisprudence of collaborative playwriting has led courts to develop an unduly narrow judicial interpretation of joint authorship.

Part I examines the ubiquity of collaborative writing in the Elizabethan theater and traces its decline during the English Civil Wars (1642–51) and the Restoration, accompanied by a contemporaneous shift in cultural preference toward sole authorship that was fueled by the concept of the romantic author.  Part II demonstrates the role that dramatic works played in the jurisprudence of authorship in English and American courts during the nineteenth century.  Part III addresses the role of dramatic works in shaping the federal courts’ attempts to resolve competing authorship claims under the Copyright Act of 1909 in the absence of clear legislative guidance for distinguishing among joint works, derivative works, and works made for hire.  Part IV examines the federal courts’ restrictive interpretations of joint authorship under the Copyright Act of 1976 in the specific context of dramatic works and the courts’ reluctance, in many cases, to extend those interpretations to other categories of works.  Part V suggests that the persistent influence of romantic authorship has led federal courts to favor sole authorship over collaborations, and draws a contrast with contemporary English courts’ refusal to embrace this trend, concluding that the American courts’ preference for solitary authorship of dramatic works conflicts not only with the federal statutes, but with the history of dramatic writing as well.