Film Directors Are Authors, Right? Not Necessarily, Says Judge
Producers vs. directors: another chapter in the sometimes stormy relationship. This one is primed to be heard by an appeals court.
In the annals of Hollywood, there have been many tales of strife between film producers and directors. Usually, battles over such issues as creative decision-making and final cut are governed by contracts. But who is the Alpha Dog when a film gets completed without any written agreement?
Coming soon to the 2nd U.S. Circuit Court of Appeals is an unusual dispute. At the center of the case is a young film director named Alex Merkin, whose credits include Across the Hall, featuring the late Brittany Murphy in one of her last roles, and HBO's The Girls Guide to Depravity. This case centers on a short film he made two years ago entitled Heads Up.
In Merkin's fight with producer Robert Krakovski's 16 Casa Duse over the short film, the director lost big. Not only did a judge order Merkin this week to pay more than $175,000 of the producer's legal fees (over a film that cost just $45,000 to make), but the judge challenged the notion that film directors like him -- not to mention cinematographers, actors, choreographers and others -- make contributions that unilaterally would entitle them to be deemed authors in such a way as to claim a copyright interest in a movie.
Hollywood is ruled by contracts. The biggest reason why discussions over the entitlements of film contributors don't come up more is the prevalence of written agreements. There are exceptions, of course. See this dispute over Spike Lee's Malcolm X, for example. Or this pending appeal over the infamous Innocence of Muslims. The case over Heads Up is the latest exception.
According to the facts of the present dispute as laid out by U.S. District Judge Richard Sullivan, Krakovski's company purchased the film's screenplay in 2010 and assembled the crew. Except for Merkin, everyone involved assigned their rights to their contributions to 16 Casa Duse. Merkin was sent a draft of his agreement, but never signed it. Negotiations continued as the filming commenced and was completed. Afterwards, the parties were still short of an agreement for the director's services, but they entered into a short-media agreement to protect the stored footage. Merkin agreed not to transfer it from a hard drive.
The relationship between the two then began to fray. The producer and director came close to an agreement where Krakovski would have final cut and Merkin could remove his name from the credits if he didn't like the end product, but ultimately negotiations broke down over the scope and nature of Merkin's involvement in editing the film.
Then in late 2011 and early 2012, things got hairy. Merkin told Krakovski that the film couldn't be released without a proper "chain of title." Merkin secretly registered a copyright for the film with the United States Copyright Office, which necessitated him copying the raw footage from his hard drive onto four DVDs. And after Krakovski arranged to have the film screened at the New York Film Academy, Merkin's lawyer asserted to NYFA's chairman that his client held a copyright and referenced a "cease and desist."
A lawsuit commenced. Krakovski wanted a declaratory judgment that Merkin had no copyright interest in the film, that Merkin's registration was invalid, and that the director had breached contract, committed tortious interference and conversion. Merkin wanted his own declaratory judgment that his directorial services constituted authorship and was not a work-for-hire.
In late September, Judge Sullivan handed down his opinion, first observing that even if Merkin was an author, he was at best a "joint author," and couldn't have prevented the licensing of the film.
On the issue of the film's authorship, the judge said that while there was no question that Merkin had made independently copyrightable contributions to the film, the director could only be considered a joint author if he and Krakovski fully intended to be joint authors.
"Here, the record uniformly establishes that Plaintiff, through its principal, Krakovski, never intended to share authorship of the film with Merkin or anyone else," wrote the judge, pointing to Merkin's unsigned written agreements and his stated intentions as well as the executed agreements that every other member of the cast had made with the producer.
Judge Sullivan said that the 2nd Circuit hadn't examined the scenario where, absent a work-for-hire agreement, two parties made substantial contributions yet didn't intend to be joint authors. But the judge found some case law to support his conclusion that "the dominant author is the sole author."
In this instance, the judge deems producer Krakovski to be the "dominant" one.
Next, the judge tackled the question of copyright entitlement.
"Contrary to Merkin’s belief, only the Film receives copyright protection," wrote the judge. "There is no separate copyright for the film’s direction, production, or cinematography. In and of themselves, those contributions are conceptual and cannot be copyrighted; it is only their expression in a tangible medium that receives copyright protection."
The judge added, "Merkin’s error leads him to misapprehend the purpose of obtaining work-for-hire agreements. … In fact, the purpose of work-for-hire agreements is not to consolidate copyrights under a single owner, but rather to consolidate authorship. … That is, with a work-for-hire, the creator never has a copyright; what the creator has is a claim of authorship, and the work-for-hire agreement assigns that claim to a third party."
Judge Sullivan was so dismissive of the views of Merkin and his attorney Maurice Reichman that he awarded the plaintiff legal fees and sanctions. The judge also granted summary judgment to Krakovski on breach of contract and tortious interference. Here's the full ruling.
On Monday, the judge ruled Merkin would have to pay $175,634 of the plaintiff's fees while Reichman would have to pick up about $10,000 more. The judge said, "Had it not been for Merkin's empty claims and Reichman's collaboration in a meritless suit, Plaintiff never would have had to waste so much money to cover its legal bills."
Reichman obviously disagrees, and tells The Hollywood Reporter he is in the process of filing papers to appeal the judgment up to the 2nd Circuit Court of Appeals. At issue will likely be how to determine authorship and who is entitled to copyright in the absence of a formal agreement. "I don't think there is any question Merkin is entitled to a copyright," he says, pointing to the guidance that the Copyright Office gives to potential registrants.
Eleanor Lackman at Cowan DeBaets represented the plaintiff.
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