There wasn’t much subtlety when Jared Leto cursed Taylor Swift at his recording studio, but a lawsuit filed by the star over TMZ’s posting of a video showing what Leto had to say now figures to turn on some.
In response to a claim of infringing the copyright of Leto’s Sisyphus Touring outfit, TMZ has pointed to its source — the videographer, Naeem Munaf — and argued he’s the real owner of the video who licensed use. In summary judgment motion papers, TMZ contends that the only way Leto owns the video is if he had a work-for-hire agreement with the videographer before the footage was shot.
On Tuesday, Leto’s company responded with word that it did have an agreement — albeit an oral one. According to Sisyphus’ memorandum (read here), “The existence of an oral agreement prior to creation of the footage requires denial of the Motion.”
Work-for-hire basically means that an employee or contractor is creating something under the supervision, control and expense of an employer, and according to copyright law, that means the employer is considered the statutory author and owner of the work. It’s pretty much acknowledged by almost every lawyer out there that work-for-hire agreements must be in writing, but the wrinkle now being addressed is to an instance where a post-creation written agreement confirms the terms of a pre-creation oral agreement. While TMZ may be arguing that the written instrument between Leto and his videographer must precede the creation of the work to truly qualify as a work-for-hire agreement, Leto’s lawyers are pointing to cases where the written agreement is deemed valid when it “memorializes” the earlier oral one.
What happened back in September, according to court documents, was that Munaf went to Leto’s studio after being contacted by one of his reps. Before he arrived, Munaf is said to have orally agreed that footage shot would belong to Sisyphus and that he’d later be sent a non-disclosure agreement. Munaf was paid $30 per hour for his work and spent two hours filming.
In early December, Munaf got in touch with TMZ, and one of the publication’s reps sent him an email outlining the terms of a $2,000 deal to purchase a video of Leto talking about Swift. The videographer was asked to agree, and he did. But Munaf never sent a contract back to TMZ. Instead, he may have had second thoughts because Leto’s reps would soon warn TMZ about posting stolen footage. On Dec. 7, in what Sisyphus characterizes as a rush-to-publish, TMZ posted the video, which would go viral. That same day, Munaf signed a non-disclosure agreement with Leto’s company.
“Here, there is no dispute between Plaintiff and Mr. Munaf as to Plaintiff’s ownership of the Munaf Video,” states the Sisyphus legal brief. “It would be contrary to the purposes of the writing requirement of the Copyright Act to allow [TMZ], a third party infringer, to challenge the adequacy of the writing memorializing Plaintiff’s undisputed ownership.”
Howard King and Seth Miller, attorneys for Sisyphus, may be arguing that a lack of written instrument prior to the creation of the video doesn’t doom an ownership claim, but they make an alternative argument concerning TMZ’s own lack of executed written agreement. Specifically, they address the fact that Munaf never signed his licensing deal with TMZ. As the court filing puts it, “Even if [Munaf] had owned the copyright on December 4, 2015, the December 4 Email Exchange was still ineffective to grant either an express or implied license to TMZ,” with the added argument that the videographer’s email discussion with TMZ didn’t mention any license of copyright. “On its face, it purports to sell to TMZ the material object (video) that contains the Taylor Swift Excerpt.”
All this contractual nitty gritty flows from events that are probably fairly common — videographers filming musicians, sources leaking to TMZ. It also nearly overshadows the other development in the case, which is a separate summary judgment motion over whether TMZ had fair use to the video. Leto’s company asks the judge to declare that the celebrity website did not, while TMZ on Tuesday says it needs to obtain a complete copy of the Jared Leto studio video shot by Munaf to assess the various factors comprising whether TMZ’s exploitation of the video was a fair use. Yes, you read that right. TMZ looks to gather more video of Leto.