From directors to cinematographers, from designers to camera operators, it takes quite a number of hands to create a motion picture. On Monday, though, the 2nd Circuit Court of Appeals ruled that individual contributions can’t be recognized as works of authorship insofar as becoming independently copyrightable.
The opinion from Circuit Judge Robert Sack is a big one in entertainment. It comes on the heels of a decision in May by a sister circuit concerning Innocence of Muslims, where an actress’s claim to own her performance got a second, more dubious read.
This time, the case addresses a short film titled Heads Up, directed by Alex Merkin, who got into a legal fight with producer Robert Krakovski‘s 16 Casa Duse.
Related Stories
Krakovski’s company purchased the film’s screenplay in 2010 and assembled the crew. Everyone but Merkin assigned their rights to their contributions to 16 Casa Duse as a work for hire. Merkin never signed the agreement, but he directed Heads Up anyway and completed production. Negotiations between director and producer continued thereafter, but the dispute escalated. Merkin refused to turn over the raw film footage. He later registered the film with the U.S. Copyright Office. And when Krakovski began submitting Heads Up to film festivals, Merkin issued threats.
Casa Duse filed a lawsuit seeking an injunction against Merkin from interfering and later sought clarity about who owned copyright in Heads Up. In September 2013, the producer prevailed against the director.
This led to Merkin’s appeal and to the unique question that was presented to the 2nd Circuit: “May a contributor to a creative work whose contributions are inseparable from, and integrated into, the work maintain a copyright interest in his or her contributions alone?”
Sack is doubtful, and in this case, he firmly says no.
“We have never decided whether an individual?s non?de minimis creative contributions to a work in which copyright protection subsists, such as a film, fall within the subject matter of copyright, when the contributions are inseparable from the work and the individual is neither the sole nor a joint author of the work and is not a party to a work?for?hire arrangement,” he writes. “We answer that question in the negative on the facts of the present case, finding that the Copyright Act?s terms, structure, and history support the conclusion that Merkin?s contributions to the film do not themselves constitute a ‘work of authorship’ amenable to copyright protection.”
The fingerprints of the Innocence of Muslims decision is all over this new ruling. In that case, Cindy Lee Garcia aimed to establish copyright to her performance so as to force YouTube to take down the controversial anti-Islamic film. Initially, 9th Circuit Chief Judge Alex Kozinski gave her victory by determining that an actor’s fixed performance can be copyrightable if it evinces some creativity.
Afterwards, though, the U.S. Copyright Office refused to accept her registration by determining that someone like Garcia may assert a claim in joint authorship, but not sole authorship of her performance in a portion of the work. Later, the 9th Circuit reversed Kozinski to the relief of those who distribute copyrighted works.
In today’s opinion concerning Heads Up, Sack looks to avoid making Swiss cheese of copyrights.
“Filmmaking is a collaborative process typically involving artistic contributions from large numbers of people, including — in addition to producers, directors, and screenwriters — actors, designers, cinematographers, camera operators, and a host of skilled technical contributors,” he writes. “If copyright subsisted separately in each of their contributions to the completed film, the copyright in the film itself, which is recognized by statute as a work of authorship, could be undermined by any number of individual claims.”
Sack, though, does note that “authors of freestanding works that are incorporated into a film, such as dance performances or songs, may copyright these ‘separate and independent work[s].”
Nevertheless, today’s ruling means that two of the biggest circuits have thrown cold water on the idea that joint works are comprised of many independent copyrightable contributions. Given the 2nd Circuit’s place as the center of much of the theatrical and musical worlds, this is quite a big deal. Choreographers of Broadway musicals might find it tougher to protect their dance steps. A violinist in a symphony might find it much tougher to come forward to protect their solos. And then, there’s the film directors.
“As director, Merkin made a variety of creative decisions related to camera work, lighting, blocking, and actors? wardrobe, makeup, and dialogue delivery, particularly during the three days of filming,” Sack writes. “But in the context of the project as a whole, Casa Duse exercised far more decisionmaking authority. … Casa Duse initiated the project; acquired the rights to the screenplay; selected the cast, crew and director; controlled the production schedule; and coordinated (or attempted to coordinate) the film?s publicity and release.”
