LOF is anxious about Kate Moss's intellectual property rights

Posted by Charles Colman

As brought to my attention by Court Williams of Kess Agency, Kate Moss is rumored to be recording an album.


The U.K.'s Daily Mail reports that "[t]he supermodel . . . is working on material and her rock-star boyfriend Jamie Hince is on hand to offer advice." This news is probably a tenuous segue into a lecture on "joint works" under copyright law, but the rumor is decidedly more colorful than this week's big "fashion law" story: Abercrombie & Fitch Seeks to Reincorporate in Ohio Possibly to Thwart Unwanted Takeover (unless hostile takeovers are, you know, your thing.)


So why will Kate Moss's musical adventures keep me from sleeping tonight? Upon reading the above-quoted description of Moss's and Hince's creative collaboration, the IP litigator in me immediately flashed forward to a romantic (and musical) break-up, with the arguments over copyright ownership that naturally ensue. (Litigators, of course, always see relationships-- whether corporate or romantic-- after they have fallen apart.)


You see, under the U.S. Copyright Act, “[a] ‘joint work’ is a work prepared by two or more authors with the intention that their contributions be merged into inseparable or interdependent parts of a unitary whole.” 17 U.S.C. § 101. Imagining for a moment that Hince offered his musical "advice" in the U.S. rather than England, would this contribution rise to the level necessary to make him a "joint author" under the Copyright Act?


In one of the most famous joint authorship cases in copyright law, dramaturg Lynn Thomson sued composer Jonathan Larson's heirs, claiming that she was the co-author of the (by then, sensationally successful) Broadway musical "Rent." It was undisputed that Thomson and Larson had worked "intensively together" on the show for a period of several months. And, unlike in many creative collaborations, Thomson and Larson even had a contract, which stated that Thomson would "[p]rovid[e] dramaturgical assistance and research to the playwright and director," but did *not* explicitly address the question of authorship.


At trial, Judge Kaplan of the Southern District of New York heard the testimony of over two dozen witnesses and considered thousands of pages of documentary evidence, then ruled from the bench that Thomson was not a co-author of "Rent." Kaplan relied on, inter alia (legalese for "among other things"), the billing for the show, which consistently listed Larson as the "author/composer" of the show and Thomson as the "dramaturg," and Larson's numerous contracts with third parties that described him as the show's sole author. Kaplan found that such evidence unequivocally demonstrated that Larson considered himself the show's only "author," and this resolved the question at hand: no mutual intent, no joint authorship.


As you might guess, the question of joint authorship is of major interest to (actual or alleged) creative collaborators, most notably musicians but also, potentially, fashion designers (at least those working on protected types of apparel.) As the Second Circuit explained in Thomson v. Larson, "[j]oint authorship entitles the co-authors to equal undivided interests in the whole work — in other words, each joint author has the right to use or to license the work as he or she wishes, subject only to the obligation to account to the other joint owner for any profits that are made." (Emphasis mine.) So think twice before adopting that suggestion from an acquaintance about changing the melody of the bridge, or adjusting the-- well, for fashion, let's just go back to the embroidery on a wedding gown. When you hit it big, you may have a self-proclaimed co-author on your hands. And the problem with questions of intent is that they require factual determinations. That may mean a trial. And that may mean a big chunk of your savings, not to mention of your life.


Even when it's not realistic to expect creative collaborators (say, live-in significant others) to spell out their respective authorship rights in a written agreement, careful lawyers will instruct them to do it anyway. And the collaborators should take their advice. Just draft and sign the papers; if it makes it easier, blame it on the lawyer. We're used to it.


So, Kate Moss: you've been warned.