12. F. Jay Dougherty, Not a Spike Lee Joint? Issues in the Authorship of Motion Pictures under U.S. Copyright Law, 49 UCLA L. Rev. 225 (2001) Copyright (c) 2001 Regents of the University of California; 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 situation arose. 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 relationship between the screenplay and the motion picture, and the question of whether performers are *226 authors under U.S. copyright law. Professor Dougherty concludes that, although the relationship between 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 international law and under the laws of some countries outside the United States. International law establishes 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 structured joint 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 appropriate liability rule. Introduction 228 I. Authorship Under Copyright Law 230 - 242 - A. Background 230 B. Authorship Under U.S. Law Generally 232 1. Constitutional Copyright Clause--Writings of Authors 232 2. 1909 Act--Writings of Authors 233 3. 1976 Act--Original Works of Authorship 234 a. Originality--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. Employee Works 239 2. Independent Contractors 240 D. The Problem of Multiple Participants 240 1. Fixation and Control 241 a. Fixation-Authors v. Scriveners 242 b. The Proper Role of Control 244 2. Derivative Works 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 b. The Relationship Between Owners of Collective Work and Owners of Preexisting Works 252 4. Joint Works 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 Works. 264 - 243 - E. Summary 265 II. The Nature of a Motion Picture Work and Motion Picture Authorship 267 A. Overview 267 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 284 2. Screenwriters 284 a. The Screenplay as a Joint Work 285 b. The Film Based on the Screenplay--Derivative Work or Joint Work? 286 (1)The Screenplay as a Contribution to a Motion Picture Joint Work 287 (2)The Screenplay as Preexisting Material for a Derivative Work 288 (3)Screenplays Will Not Satisfy the Judicially Enhanced Joint Work Requirements 292 (4)Copyright Policy Arguments 295 (5)Conclusion 296 3. Cinematographers 297 4. Editors 290 5. Performers 300 6. Production Designers and Other Designers 306 7. Music: Composers, Songwriters, and Performers 308 8. Directors 311 9. Film Authorship Under International and Comparative Law 313 III. Motion Picture Ownership: Work Made for Hire and Consequences of Failure to Qualify as a Work Made for Hire 317 A. General Practice: Motion Pictures as Works Made for Hire 317 B. The Nature of a Film Work when Not a Work for Hire 318 C. Which Liability Rule? 326 D. Implied Licenses 327 - 244 - 1. Availability of Implied Licenses 327 Conclusion and Summary of Recommendations 333 *228 Introduction Last time I checked, I owned those films. -Ted Turner, addressing objections to the colorization of classic films.1 A motion picture is a type of audiovisual work defined by the 1976 Copyright Act.2 A motion picture is also one of the most collaborative types of works created by authors--the product of the efforts of numerous contributors, many of whom provide copyrightable material. In the U.S. film industry, most of those contributions customarily qualify as “work made for hire,” with the hiring party, usually the producer/financier, deemed both the author and the initial owner of the copyright in the contributions.3 Yet problems do arise. A typical problem might involve a failure to comply with a formal requirement for a particular type of work. For example, a consultant contributes copyrightable material to a film, but a work- for-hire contract is not signed. Or the parties may think they have work-for-hire arrangements, but the arrangements fail because an individual does not qualify as an employee or provides copyrightable material outside the scope of his employment. Even in the ordinary course of events, in which the contributions to a motion picture are work made for hire, what exactly is encompassed within the copyright? An employer is the author and owner of copyright only in the copyrightable contributions of its employees. What are those contributions with respect to a motion picture? There are several important issues that have not been resolved by the Copyright Act or by the courts, or discussed in legal scholarship in connection with authorship of motion pictures. Individuals create various contributions to a motion picture with the intent that their contributions be merged into inseparable or interdependent parts of a unitary whole. This highly collaborative work becomes a motion picture. To the extent that those individual contributions fail to qualify as works made for hire, the resulting “unitary whole” might constitute a work of coauthorship--a “joint work” under the Copyright Act.4 But recent judicially created requirements for joint works suggest that it is nearly impossible for contributors to a motion picture to qualify as coauthors. Perhaps judges are uncomfortable with the consequences of a determination that a work is joint, *229 but rather than revisit those consequences in view of the needs of the motion picture business, they create rules that preclude finding works to be joint. Thus, the Ninth Circuit, in a recent case involving contributions to Malcolm X,5 a film by director Spike Lee, missed an opportunity to elaborate appropriate rules for a film as a work of collaborative authorship, and created uncertainty instead.6 A motion picture is usually based upon and adapted from a screenplay, which is often derived from another underlying work, such as a novel or a short story. A motion picture