Producer vs. Director. 2nd Circuit: “No director copyright”

The Hollywood Reporter last week reported that the 2nd Circuit has ruled against a director's claim of ownership in his individual contribution to a film.    The case involved a short film called “Heads Up”, directed by Alex Merkin, and Produced by 16 Casa Duse and it's principal Robert Krakofski.  The facts aren't unusual.  The film's screenplay was purchased by the producer, and the crew (all except Merkin), signed  routine agreements containing Work Made For Hire provisions.  Merkin held out, and negotiations continued through the production period.  Eventually things broke down and Merkin refused to turn over the film footage.  He also registered  the film's copyright in his own name.

When Merkin made threats against the producer for entering the film into festivals,  Casa Duse filed suit for an injunction against Merkin.    The trial court held in the producer's favor, and the director appealed.

The 2nd Circuit now joins the 9th Circuit in ruling that when contributions  are inseparable from the work, and the individual in question is neither a sole or joint author,  those contributions are not separately a “work of authorship”  to which copyright protection attaches.

The 9th Circuit ruled earlier this year in Garcia v. Google, over an actress' claimed copyright in her contribution to the controversial film Innocence of Muslims.

Although this is another major decision, it depends on a pretty specific set of facts.  In most instances, the participants have signed agreements clarifying issues of ownership and copyright.

The takeaway from this case, (and the Garcia ruling) is really this:  “Get it in writing”.  The days of Hollywood operating on a handshake are gone.  If you are making a film, and any of your cast, crew or production team has yet to sign a properly drafted contract, you're at risk of this kind of claim.

And, if you've taken investor funds to make your film,  you're exposing them to this risk.  That's a possible breach of your fiduciary duty.

Even though the cases discuseed here each fell into the “win” column for the producers, they came after  hard-fought battles, and at w  tremendous cost.

Bottom line.  Beware the incomplete paper trail.