A recent decision of the United States Court of Appeals for the Second Circuit suggests a method for determining who owns the copyright in a film.
The Facts
The plaintiff was a film production company. The defendant was the director of the film. The plaintiff purchased the rights to a screen play from the author of the play and then proceeded to finance and produce a short film based on the screen play. The plaintiff assembled a cast and crew for the film, hired additional producers, a script supervisor, a photography director, camera operators and various designers and technicians as well as actors. Each of these individuals entered into an independent contractor agreement with the plaintiff that provided under U.S. law that the plaintiff would have complete control of the production and own the copyright in the film.
When the plaintiff sent a draft agreement to the defendant relating to his employment as a director it contained similar terms. The defendant chose not to sign the contract.
Despite the lack of a completed agreement, production began. During production, which included three days of filming, the defendant performed his role as director by advising and instructing the film's cast and crew on matters ranging from camera angles and lighting to wardrobes and make up to the actor's dialogue and movement. However, unsuccessful discussions continued with the defendant concerning the ownership of copyright. The defendant refused to give up any creative or artistic rights he had in the film and took the position that his contribution did not belong to the plaintiff. The plaintiff responded that it was never intended that the film would be a joint venture and its position was set out in the agreement submitted to him.
The Action
Eventually, the parties agreed to disagree and litigation followed shortly thereafter. The plaintiff instituted an action against the defendant seeking an injunction enjoining the defendant from interfering with its use of the film and a declaration that the defendant was not entitled to a copyright interest in the film, among other things. The District Court granted the injunction and judgement in favour of the plaintiff. The defendant appealed.
The Appeal
On appeal the court said the case raised the issue of whether a contributor to a creative work, whose contributions are inseparable from and integrated into the work, could maintain a copyright interest in his contributions alone. The court concluded on the facts of the case that the defendant could not.
The parties agreed that the defendant was not a joint author or a co-author of the film because there was no collaboration or intention that the respective contributions would be merged into inseparable parts of the unitary whole. In this case neither party intended to share authorship of the film with the other.
Garcia v. Google
Following the approach of the recent Garcia v. Google case the court said that the defendant's efforts did not in themselves constitute a work of authorship that was protected by copyright.
Motion pictures are works that may be expected to contain contributions from multiple individuals. The absence of explicit protection under the relevant legislation suggested that non-freestanding contributions to such a work are not ordinarily themselves works of authorship.
The courts said that it was possible that a director for a film could be the sole or joint author of the film if the director actually created the work and translated the idea into a fixed tangible expression entitled to copyright protection. But a director's contribution to an integrated work, such as a film, is not itself a work of authorship, subject to a separate copyright protection.
The Dominant Author
When multiple individuals make a claim to copyright in a single work the court said a determination must be made as to who is the "dominant author". In order to make this determination the factors to be considered include who exercised decision-making authority, the billing arrangement and written agreements with third parties.
In the context of the project as a whole the plaintiff exercised more decision making authority then the director did in his directing activities. The plaintiff initiated the project, acquired the rights to the screen play; selected the crew, cast and the director; controlled the production scheduling and co-ordinated the film's publicity and release.
The second factor is the way in which the parties bill or credit themselves. In this case, the factor was neutral since both parties wished to take credit.
The third factor – the party's agreements with outsiders – favoured the plaintiff because it entered into agreements with all relevant cast members to clarify the plaintiff was the copyright owner.
As a result the court concluded the plaintiff was the dominant author of the film and the plaintiff not the defendant owned the copyright in the film and its prior versions.
The Canadian Position
In Canada, films come within the category of a "cinematographic work" which includes any work expressed by a process analogous to cinematography, whether or not accompanied by a sound track.
In order to determine who the author of a film is, the facts must be carefully analyzed to ascertain who has exercised the skill and judgment that resulted in the expression of a work in material form. The focus of the inquiry is the cinematographic work not the underlying work it may be based on.
In the past, competing claims have been made by directors who are responsible for how the film was shot, the script writer and the producer who commissioned and was financially responsible for the work. In practice, in the vast majority of cases it is agreed beforehand who will own the copyright and this is clarified by appropriate contracts and assignments which must comply with the requirements of the Copyright Act.
Comment
It remains to be seen whether the approach of the Garcia v. Google case is the correct approach.
It seems more logical to solve the issue of who owns the overriding copyright in a film by making an assessment to determine who has exercised the skill and judgement that resulted in the film as a whole. Having said that, it seems that the factors that were applied in the determination of who was the dominant author could be applied in making the assessment required by Canadian courts so the two approaches may not be completely inconsistent.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
