[At common law], there are two sorts of co-ownership for land and personal property: co-
ownership “in common” and “joint ownership.” An owner “in common” holds an undivided
share in the property, and that share can be freely transferred without the other co-owners’
consent. On the owner’s death, the share goes to his estate. By contrast, “joint” owners each own
the whole property indivisibly, and all must consent to any disposition. On death, a “right of
survivorship” arises; the joint owner’s interest disappears entirely, thus benefiting the surviving
co-owner(s).In practice, either form of co-ownership bristles with technical problems. As for co-owners in
common, in what shares do they hold? If one co-author contributed more than another, does she
deserve a greater share? How is “more” to be assessed, without encountering aesthetic
difficulties? Even though one co-owner in common can transfer her interest without asking
permission, is there any limit on the identity or number of transferees? For example, may she
assign to two or more co-assignees or must she transfer only to one? And what if one co-owner
refuses to agree on whether or how to exploit a work? Can the court partition the property or
order a sale? If there is a partition, what part goes to which owner, and how can exploitation
practically occur without affecting the other owner’s interest?Some of these latter issues may be sidestepped by adopting the prevalent British rule that no co-
owner may exploit the copyright by herself. Each co-owner may prevent licensing and may
obtain an injunction and her share of damages or profits from infringements, even against a co-
owner who tries to exploit the copyright without the consent of all other co-owners. United States
law, by contrast, allows one co-owner to exploit a work by non-exclusive licensing without the
other co-owners’ consent, subject to accounting to the others for their share of the proceeds.Neither approach, if rigidly followed, is satisfactory. The British rule lets one co-owner play “dog
in the manger.” The U.S. rule allows her to interfere with possibly better marketing and
management strategies that other co-owners wish to pursue. ...[W]hile joint authors or co-owners usually hold copyright in common in equal shares, this
presumption may be displaced. For example, where copyright in wedding photographs and
portraits is co-owned by the spouses, a court inferred that their common intention was that the
surviving spouse would own the whole copyright on the other’s death. Treating the spouses as
“joint” owners, with an automatic mutual right of survivorship, accorded with their presumed
common intention. Similarly, an Australian court thought that copyright in artistic works made
by aboriginal band members using the band’s communal knowledge should be co-owned by the
band, rather than by any individual member.A flexible approach may also help the resolution of disputes among co-owners. The parties’
presumed common intention at the time they started collaborating is usually a sound guide, at
least where their intent is not against any public policy. For example, one would usually expect
joint authors of academic research to intend early publication of their data and conclusions. If
one co-author disagreed about the work, she might reasonably expect that her name be removed
and an appropriate disclaimer be entered on the paper. Neither co-author would intend that the
other could prevent publication altogether, nor would such a ban be consistent with the public
interest in having early access to the fruits of academic research. A court could therefore allow
publication of the work by one co-author with appropriate disclaimers, even over the later
objection of another co-author. By contrast, a jointly authored confidential document that was
meant to be used for one purpose should not usually be published or exploited for a different
one. All the co-authors may agree to remove the ban from themselves or from other confidants,
but unanimity may not always be necessary. Suppose management employees co-author a(^118) corporate buy-out plan. Despite the initial collaboration, the group credo may be “every man for