The U.S. Court of Appeals for the Seventh Circuit, finding that quality matters over quantity in determining whether a contribution amounts to joint authorship, held that even though a bandmate’s contributions amounted to only 10 percent of a song, the bandmate qualified as a co-author because his contributions made the song commercially viable. Janky v. Lake County Convention and Visitors Bureau, Case Nos. 07-2350, 07-2762, 08-1606 (7th Cir., Aug. 3, 2009) (Evans, J.).

The tourism bureau of Lake County, Indiana commissioned a song to promote its county. Cheryl Janky composed the song, which originally focused on the state of Indiana, and obtained a copyright registration under her name only. Janky’s bandmate, Henry Farag, suggested some changes to the lyrics to emphasize Lake County over Indiana. Janky adopted Farag’s changes, which accounted for about 10 percent of the total lyrical content of the revised song.

Janky applied for a new copyright on the revised song, this time listing Farag as the co-author of a “joint work.” Farag then gave the tourism bureau a royalty-free license to use the song. Several years later, Janky sued the tourism bureau for copyright infringement, alleging that she was the sole owner of the copyright on the song and that Farag’s license to the bureau was invalid. The district court granted summary judgment in Janky’s favor on the issue of copyright ownership. Lake County appealed.

In reversing the district court, the Seventh Circuit noted that individuals are co-authors of a work only if they intend to create a joint work and contribute independently copyrightable material. Here, Janky’s second copyright registration, which identified Farag as co-author and the song as a “joint work,” was strong evidence of intent to create a joint work.

As to independent copyrightability, the Seventh Circuit rejected the de minimis test for joint authorship used by some courts, which requires more than a de minimis contribution by each author. Even though Farag’s changes accounted for only about 10 percent of the lyrical content, the court held that the tourism bureau would not have adopted the song without Farag’s changes. Farag’s changes were significant, the court explained, because they affected the song’s commercial viability by shifting the focus to Lake County instead of Indiana. As a result, “Farag’s contributions went beyond general ideas, refinements, and suggestions” and passed the test of independent copyrightability.

The court cautioned, however, that this case was a close call. “Placing a contribution in one hopper or the other is not always an easy task.” Here, “Farag contributed ideas and gave expression to those ideas, but had he done much less, his work would not garner the protection of copyright.”

Practice Note: When applying for copyright registration, an applicant should carefully consider the overall significance of contributions to the work made by a potential co-author. Such considerations should include an honest assessment of the intent of the parties, as well as the creative process leading to the subject work.