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Orson Welles, the War of the Worlds Copyright, and Why We Should Recognize Idea-Contributors As Joint Authors Case Western Reserve Law Review Volume 66 Issue 3 Article 4 2016 An Idea of Authorship: Orson Welles, The War of the Worlds Copyright, and Why We Should Recognize Idea-Contributors as Joint Authors Timothy J. McFarlin Follow this and additional works at: https://scholarlycommons.law.case.edu/caselrev Part of the Law Commons Recommended Citation Timothy J. McFarlin, An Idea of Authorship: Orson Welles, The War of the Worlds Copyright, and Why We Should Recognize Idea-Contributors as Joint Authors, 66 Case W. Rsrv. L. Rev. 701 (2016) Available at: https://scholarlycommons.law.case.edu/caselrev/vol66/iss3/4 This Article is brought to you for free and open access by the Student Journals at Case Western Reserve University School of Law Scholarly Commons. It has been accepted for inclusion in Case Western Reserve Law Review by an authorized administrator of Case Western Reserve University School of Law Scholarly Commons. Case Western Reserve Law Review·Volume 66·Issue 3·2016 An Idea of Authorship: Orson Welles, The War of the Worlds Copyright, and Why We Should Recognize Idea- Contributors as Joint Authors Timothy J. McFarlin† Abstract Did Orson Welles co-author the infamous War of the Worlds broad- cast? The Ninth Circuit Court of Appeals has told us no, primarily because he only contributed the idea behind the broadcast, and ideas alone can’t be copyrighted. “An Idea of Authorship” challenges this premise—that ideas, no matter how significant, cannot qualify for joint authorship in collaborative works—and argues that we as a society should, under certain circumstances, recognize idea-contributors like Welles as joint authors. We should do so to further our society’s interest in encouraging future creations, as well as out of a sense of equity and fairness to idea-contributors, acknowledging the value of ideas to creat- ive work. Recognizing idea-contributors as joint authors would increase the contractual bargaining power of many of our society’s most creative minds and ultimately better foster the free flow of ideas essential to the constitutional goal of promoting the “Progress of Science and useful Arts.”1 † Fellow, Legal Method & Communication Program, Elon University School of Law; Instructor/Adjunct Professor, Washington University in St. Louis; J.D., Saint Louis University School of Law (2006); B.A., University of Missouri (2003). Thank you to the National Archives at Riverside and San Francisco for preserving and digging up for me the original files from the Welles v. CBS case, including the invaluable testimony of Orson Welles and Howard Koch. Thank you as well to Professors Rebecca Tushnet, Roberta Kwall, and Enrique Armijo for reviewing earlier drafts, to Professor Mark McKenna for thoughts that helped inspire this project, to the participants in the 2015 Inaugural Texas A&M Intellectual Property Scholars Roundtable and Professors David Levine, Steven Friedland, Enrique Armijo, and Christopher Seaman for invaluable feedback on my presentation of this material; to Ray Kelly at Wellesnet.com for help with sources; as well as to A. Brad Schwartz and Norman Rudman for graciously giving of their time and extensive War of the Worlds knowledge. A special thanks to Orson Welles, Howard Koch, John Houseman, and the other Mercury Theatre players for their creativity and collaborative genius. My last and most important thank you goes to Amy and Fiona, my wonderful wife and daughter. Your love, support, strength, and vitality reveal all that is beautiful in this world. 1. U.S. Const. art. 1, § 8, cl. 8. 701 Case Western Reserve Law Review·Volume 66·Issue 3·2016 An Idea of Authorship Contents Introduction ................................................................................... 702 I. Copyright and Ideas: An Uneasy Relationship ....................... 708 A. The Uncopyrightable Idea .............................................................. 708 B. Why the Expression-Only Rule Has Become Part of Joint Authorship Doctrine ..................................................................................... 712 II. Essential Ideas: The War of the Worlds’ Creation in Print and on the Air ........................................................................ 715 A. First Conception: The Wells Brothers ........................................... 716 B. Mercury Rising ............................................................................ 718 C. Second Conception: Wells to Welles ............................................... 724 1. Orson Welles Testifies About the Broadcast’s Creation ................ 725 2. Howard Koch Testifies About Writing the Script. ........................ 730 D. Creative Litigation: Welles v. CBS ................................................. 733 1. Welles’s Claims ............................................................................. 734 2. Trial and Appeal ........................................................................... 736 III. Recognizing Idea-Contributors as Joint Authors .................. 738 A. Why We Should Recognize Idea-Contributors .................................. 739 1. An Author is More Than an Expressionist ................................... 739 2. Promoting Collaborative Creativity .............................................. 745 3. Ensuring Rightful Credit, Compensation, and Bargaining Power ........................................................................................... 750 B. How We Should Recognize Idea-Contributors .................................. 754 1. Substantial Creative Contribution ................................................ 754 2. Exacting Evidence of Intent: A Preexisting Working Relationship ................................................................................. 761 3. Originality as a Prerequisite? ........................................................ 764 C. The Benefits Outweigh the Fears .................................................... 765 Conclusion ....................................................................................... 767 Introduction “Miss Kael glosses over the following point . ‘[Koch] says it was . Welles’s idea that he do the Martian show in the form of radio bulletins.’ This is a meaningless sentence for those unfam- iliar with the broadcast, and easily missed by those who may vag- uely remember it now. Listen to it, though . and you will see that it is precisely this conception which was the guide for the dialogue, radio effects, the whole organization of the material. It is the heart of the matter.” —Filmmaker and Orson Welles confidant Peter Bogdanovich— writing together with Welles himself—responding to film critic 702 Case Western Reserve Law Review·Volume 66·Issue 3·2016 An Idea of Authorship Pauline Kael’s accusation that Welles improperly claimed author- ship credit for the War of the Worlds broadcast2 “ORSON WELLES CAUSES PANIC” —Times Square news ticker, hours after the broadcast3 Flash! Radiating from a CBS broadcast room in New York City the night before Halloween, 1938, the news that murderous, alien creatures had landed in the small town of Grover’s Mill, New Jersey spread across the country like wildfire—the Martians had invaded.4 Headlines the next day oozed fear: “Radio Listeners in Panic, Taking War Drama as Fact,” in the New York Times, “FAKE RADIO ‘WAR’ STIRS TERR- OR THROUGH U.S.,” from the Daily News, “RADIO PLAY TERRIF- IES NATION,” in The Boston Globe.5 While recent research convinc- ingly argues that the papers exaggerated the panic and invented the legend that entire towns ran for the hills, the research also confirms 2. Peter Bogdanovich, The Kane Mutiny, Esquire, Oct. 1972, at 99, 188; see also Peter Bogdanovich, New Introduction: My Orson, in Orson Welles & Peter Bogdanovich, This is Orson Welles xxiv (Da Capo Press 1998) (1992) (revealing that “Orson had taken a strong hand in revising and rewriting” “The Kane Mutiny,” which was published under only Bogdan- ovich’s name). In their “Kane Mutiny” article, Bogdanovich and Welles primarily sought to challenge Kael’s main contention from her 1971 essay “Raising Kane” that Welles, not satisfied with merely being its director and lead actor, improperly took credit for helping write the screenplay of his most famous film, Citizen Kane. Id. at xii–xxvii. A more recent analysis of script drafts that were either unavailable to or unexamined by Kael appears to have soundly disproven her claim. See Robert L. Carringer, The Making of Citizen Kane 16–35 (rev. ed. 1996) (discussing Welles’s involvement in writing Citizen Kane). In other words, it now seems safe to say that Welles did in fact help write Kane’s script. Id.; see also Christopher Saunders, Kael v. Kane: Pauline Kael, Orson Welles and the Authorship of Citizen Kane, http://www.popoptiq.com/kael- vs-kane-pauline-kael-orson-welles-authorship-citizen-kane/ [https://perma.cc/ 2TWF-KXY3] (May 10, 2015). It was during her discussion of Kane that Kael briefly mentioned her understanding that Welles had also disingenuously sought credit for authoring the War of the Worlds broadcast. See Pauline Kael, Raising Kane, in For Keeps 274–75, 335 (1994) (originally published in the February 20 and 27, 1971 issues of The New Yorker). It was to this passing shot that Bogdanovich and Welles were responding in their quote above. 3. Frank Brady, Citizen Welles: A Biography of Orson Welles 173 (1989). 4. A. Brad Schwartz, Broadcast Hysteria: Orson Welles’s War of the Worlds and the Art of Fake News 3–7, 65–79 (2015). 5. Id. at 115; Howard Koch, The Panic Broadcast
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