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Not a Spike Lee Joint? Issues in the Authorship of Motion Pictures Under U.S

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Not a Spike Lee Joint? Issues in the Authorship of Motion Pictures Under U.S NOT A SPIKE LEE JOINT? ISSUES IN THE AUTHORSHIP OF MOTION PICTURES UNDER U.S. COPYRIGHT LAW F. Jay Dougherty Motion pictures are generally highly collaborative works, containing many different creative contributions. In the United States motion picture industry, most of those contributions are created as works made for hire for an employer or commissioning party, simplifying potential questions as to rights and obligations among the contributors under copyright law. Occasionally, contributions are created without documentation and outside of a potential work made for hire relationship, giving rise to issues as to ownership of copyright. In one recent case, involving the motion picture Malcolm X, such a situationarose. The court in that case addressed those issues by creating special requirements for motion picture joint works. This Article reviews fundamental copyright law concepts of authorship both as to individual author works and as to works having multiple authors. It reviews existing law concerning the role of creative control and fixation in relation to authorship determinations and concludes that an individual who contributes or who actually controls the creation of minimally creative expression is an author under U.S. copyright law. Copyright law addressing various types of multiple author works, such as derivative works and collective works, may apply to certain contributions to a motion picture, but Congress and commentators have assumed that a motion picture is primarily a joint work among its primary creative contributors. Professor Dougherty criticizes recent judicially created limitations on joint work determination and suggests that courts or the legislature should reconsider the consequences of such a determination in the context of highly collaborative, multiauthor works such as motion pictures. Next, this Article considers various contributors of creative material to a motion picture, including producers, screenwriters, cinematographers, editors, performers, production designers and other designers, composers, and directors, applying copyright concepts to those contributions. Many of these participants in the creation of a motion picture contribute works of authorship. The Article addresses certain special problems in motion picture authorship, including the relationshipbetween the screenplay and the motion picture, and the question of whether performers are * Associate Professor, Loyola Law School; J.D., Columbia Law School; B.A., Yale University. Former Senior Vice President, Motion Picture Production & Worldwide Acquisition Legal Affairs, Twentieth Century Fox; Assistant General Counsel, Turner Broadcasting System, Inc. The author would like to thank his friend Jeremy Williams, his colleagues, especially Lawrence Heifer, David Leonard, and Chris May, for their encouragement and comments, and his research assistants, particularly Jennifer Sawday, Ann Schwab, and Brian Lerner, for their help in preparing this Article. Of course, any opinions or errors are solely the responsibility of the author. 226 49 UCLA LAW REVIEW 225 (2001) authors under U.S. copyright law. Professor Dougherty concludes that, although the relationshipbetween a motion picture and its screenplay will often be uncertain, the motion picture will most likely be considered a derivative work of the screenplay. Additionally, certain components of an actor's performance should be considered copyrightable works of authorship. He also concludes that, under the judicially developed joint work rules, most contributors of authorship to a motion picture will not qualify as coauthors. The Article reviews motion picture authorship under internationallaw and under the laws of some countries outside the United States. Internationallaw estab- lishes a default rule under which there is a presumptive waiver of certain exploitation rights by many creative contributors. Finally, the Article considers what should be the default rule governing the rights and obligations among the contributors to a motion picture in the absence of work-for-hire or other contractual arrangements. Professor Dougherty argues that generally in those situations, courts should apply a liability rule rather than a property rule; that is, they should grant economic compensation but not injunctive relief. An appropriately structuredjoint work rule might be the most appropriate liability rule, but, in view of the restrictive conditions that courts have placed on joint work determination, an implied license will in many cases be the most likely and most appropriateliability rule. INTRO DU CTION ............................................................................................................. 228 1. AUTHORSHIP UNDER COPYRIGHT LAW ................................................................ 230 A . Background ....................................................................................................230 B. Authorship Under U.S. Law Generally ......................................................... 232 1. Constitutional Copyright Clause-Writings of Authors ....................... 232 2. 1909 Act- W ritings of A uthors ............................................................ 233 3. 1976 Act-Original Works of Authorship ............................................ 234 a. O riginality- Source v. Copying ..................................................... 235 b. Creativity-A Modicum Will Do .................................................. 236 c. Fixation-Authorship v. Copyrightability ..................................... 237 C. Economic Authorship-Work Made for Hire ............................................... 238 1. Em ployee W orks .................................................................................... 239 2. Independent C ontractors ....................................................................... 240 D. The Problem of M ultiple Participants ........................................................... 240 1. Fixation and C ontrol ............................................................................. 241 a. Fixation-A uthors v. Scriveners ...................................................... 242 b. The Proper Role of Control ............................................................ 244 2. D erivative W orks ................................................................................... 249 a. Originality and Creativity in Derivative Works ............................. 249 b. The Relationship Between Owners of Derivative Works and Owners of Preexisting Works .................................................. 249 3. Compilations and Collective Works ................................................ 251 a. Originality and Creativity in Compilations ................................... 251 Not a Spike Lee Joint? 227 b. The Relationship Between Owners of Collective Work and Owners of Preexisting Works ................................................. 252 4. Join t W orks ............................................................................................ 252 a. Consequences of Characterizing a Work as "Joint"....................... 254 b. Additional Judge-Made Requirements for Joint Works ................. 256 (1) Separately Copyrightable Contributions ................................ 257 (2) Intent to Share "Authorship". ................................................ 259 5. Distinguishing Joint Works from Derivative and Collective W orks ..................................................................................................... 264 E . S um m ary ........................................................................................................ 265 II. THE NATURE OF A MOTION PICTURE WORK AND MOTION PICTURE A UTHORSHIP .......................................................................................... 267 A . O verview ....................................................................................................... 26 7 B. Early Photograph and Motion Picture Cases ................................................. 271 C. Motion Picture as Joint Work-Aalmuhammed's "Mastermind" Requirement and an Opportunity Missed ..................................................... 274 D. Authors and Authorship in Contributions to Motion Pictures .................... 282 1. Production Executives and Producers .................................................... 282 2. S creen w riters .......................................................................................... 284 a. The Screenplay as a Joint Work ..................................................... 285 b. The Film Based on the Screenplay-Derivative Work or Join tW ork ?..................................................................................... 286 (1) The Screenplay as a Contribution to a Motion Picture Join t W ork .............................................................................. 28 7 (2) The Screenplay as Preexisting Material for a Derivative W ork ............................................................. 288 (3) Screenplays Will Not Satisfy the Judicially Enhanced Joint Work Requirements ....................................................... 292 (4) Copyright Policy Arguments ................................................... 295 (5) Conclusion .............................................................................. 296 3. C inem atographers .................................................................................. 297 4 . E d itors ...................................................................................................
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