Author Topic: So Just Who Owns The Copyright To That Film?  (Read 1855 times)


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So Just Who Owns The Copyright To That Film?
« on: July 06, 2015, 09:43:34 PM »
Schuyler Moore

In a recent reversal of its prior nutty decision in Garcia v. Google, the Ninth Circuit Court of Appeals came to its senses and held that an actress did not own any separate copyright interest in her performance that was embodied in a film, so she could not use the copyright laws to block release of the film.  The court’s rationale was twofold – one pragmatic and one legal:  The pragmatic reason was that permitting all actors to claim a copyright interest in their performances would make film making next to impossible, as everyone involved with a film could claim some piece of copyright ownership.  The legal reason was that the actress was not the “author” of the film, since she was not the person that recorded it in a tangible medium.  In a remarkable dissent that should alone disqualify him from future consideration for appointment to the Supreme Court, Judge Kozinski stood his ground as the author of the original reversed opinion, and his dissent was as passionate as it was blatantly wrong, just reiterating his prior goofy reasoning.

But more importantly, and only one month later, the influential Second Circuit Court of Appeals went further in 16 Casa Duse LLC v. Merkin, and held that unless joint authorship was actually intended by two or more parties, the copyright to a film could only be owned by one person or entity, identified as the person that is the “dominant author” of the film.  In most cases (as was held in that case), the “dominant author” is the production company making the film.  Importantly, this case dealt with a director that had declined to ever sign a work made for hire agreement, despite repeated requests.  The court held that even though the director added his own creative skills and actually recorded the film on a tangible medium, he was not an “author” of the film and had no copyright claim to the film.  This holding means that at least in the Second Circuit, it is no longer necessary to get any written agreements with the various contributors to a film, whether directors, actors, or whoever, in order for the production company to be secure that it owns the entire copyright to the film.  Up until that case, most lawyers assumed that at least the director had a claim of copyright authorship to a film, so it was believed necessary to obtain a written agreement from the director confirming that the filming was done as a work made for hire for the production company.

Under the logic of 16 Casa Duse LLC v. Merkin, ancillary creative contributions that might independently qualify for copyright become subsumed within the copyright to the film itself.  It is not quite clear just how far this logic will be applied.  To pick just one extreme example, what if the director had independently written the screenplay on spec?  It is hard to imagine that the director would not have a copyright claim against the film as being a derivative work based on the screenplay, but under the logic of the case the production company should own the copyright to the film outright, as the “dominant author” of the film.  Or what about all the cases that involve some underlying copyrighted work (such as a quilt or artwork) that is incorporated into a film?  Certainly, those claims will survive.  16 Casa Duse LLC v. Merkin might have been on firmer ground if it had held, as other cases have, that when one person requests another to work on a specific copyrighted work, that the person performing the work (in this case, the director) is deemed to be an “employee” of the person requesting the work for copyright purposes, so the contributions become part of the copyright owned by the person requesting the work, even in the absence of any written agreement.  One might guess that 16 Casa Duse LLC v. Merkin will later be distinguished on that basis.

In all events, the two recent cases go far in clarifying just who can (or more accurately, who can’t) make a claim to copyright ownership in a film, and they are both certainly welcome news to all film production companies.