Directors vs. Producers: Who Is the Rightful Copyright Owner of Films?
There is no denying that filmmaking is a collaborative process. A film crew is assembled for lighting, camera control, costume design, and other areas needed for the production of a motion picture. A director is the known leader of these productions. A writer creates a script and a director brings that script to life. A director is in control of casting, shot selection, editing, script changes, lighting, sound effects, design, and any other elements concerning the film. A director has the “final say” on all major creative and technical decisions. Up until recently, the role of a director concerning the ownership of a completed film was never in question. Two cases have changed the entire structure of copyright ownership rights in regards to a completed film: Garcia v. Google (2014) and 16 Casa Duse LLC v. Merkin (2015). In Garcia v. Google, the 9th Circuit Court of Appeals held that an actress did not own any separate copyright interest in her performance that was embodied in a film and could not use copyright laws to block the release of the film. In 16 Casa Duse LLC v. Merkin, the 2nd Circuit Court of Appeals held that unless joint authorship was actually intended by 2 or more parties, only 1 person or entity known as the “dominant author” could own the copyright to a film.
The general copyright rule is whoever creates the work is the owner. However, the film industry has a different approach under the “work made for hire” doctrine. In a “work made for hire” (WMFH) agreement, contributors to a film including actors, directors, set designers, and other crewmembers do not own ANY part of the end product. Rather the studio that hired them owns the entirety of the work. Studios only want 1 version of a movie released and complete ownership to that version. But when a work made for hire doctrine is NOT signed, practical wisdom would suggest the director would be the rightful author of their film. In light of these decisions, all directors face a copyright injustice that courts need to remedy.
There is no denying that many people are needed to create a completed film. A producer does have a great impact during the production process. The producer’s role is to handle all of the business matters behind the film. In most cases, the producer hires the director, puts together a full cast, finds an area for shooting the film, and many other fundamental decisions. Directors desire to have complete creative control over the film. Producers and directors are known to clash on occasion. The biggest struggle between the two vital roles is the question of who is the rightful author of a film in the absence of a WMFH agreement. Specifically, whether a film director can maintain a copyright interest in a film. The 2nd Circuit Court denied directors this right in a significant and fairly recent decision cementing a new regulation within Hollywood. 16 Casa Duse, LLC v. Merkin, 791 F.3d 247 (2nd Cir. 2015).
In Casa Duse, the U.S. Court of Appeals in New York City held a film production company owned the copyright interests in a film entitled “Heads Up” rather than the film’s director. The director contended that he owned all copyright interests in the raw film footage. Here the film production company was determined the “dominant author” and therefore owned the copyright. The director exercised a significant degree of control over many creative decisions, but Casa Duse exercised far more decision-making authority over the project as a whole. Casa Duse initiated the project, acquired the screenplay rights, selected the personnel, controlled the schedule, and coordinated the film’s publicity/marketing. Casa Duse was found to have owned the copyright in the finished film and its prior versions, including the disputed raw footage. This set the new standard for disputes between directors and producers.
Garcia v. Google was the first case to question whether a contributor to an integrated work has an independent copyright in her contribution when that contribution was intended to merge with other contributions into an inseparable whole. Plaintiff Cindy Lee Garcia was paid approximately $500 for 3 days of shooting scenes for a film titled “Desert Warrior”. “Desert Warrior” was never released, and Garcia’s performance was instead included in an anti-Islamic film called “Innocence of Muslims”. Garcia was not aware her performance would ever be used for an anti-Islamic film, for if she had known she would have never agreed to the role. In the trailer for “Innocence of Muslims”, Garcia’s 5 second performance was dubbed over so that she was asking, “is your Mohammed a child molester”. The trailer was uploaded to YouTube, and an Egyptian cleric issued a fatwa, calling for the killing of everyone involved with the film. Garcia received multiple death threats.
Garcia brought a copyright infringement suit to force Google to remove “Innocence of Muslims” from YouTube. The court held Garcia failed to satisfy her burden to show she would suffer irreparable harm in the absence of an injunction. Garcia needed to prove the harm stemmed from her legal interests as an author. The 9th Circuit found that the death threats had nothing to do with the actress’s copyright interest in the film. Garcia was unsuccessful in bringing a copyright infringement suit to force Google to remove “Innocence of Muslims” from YouTube. This landmark case held that an actress does not have a copyrightable interest in her performance within a film.
Garcia and Casa Duse have cemented the limits of copyright authorship within an integrated work. Both courts had valid concerns about creating copyright rights to constituent parts of a motion picture. Indeed, chaos would overthrow Hollywood if actors could file copyright applications for 5-minute scenes in films. Yet a director’s role is constant throughout the entire film, and unlike the actor, they are the heads of the project. Placing the director on the same level of involvement as an actor is preposterous. Directors (alongside producers) determine which actors to cast for the roles in their films. Directors influence actors’ performances by providing guidance and clarity when needed for the main roles. Directors impact the process as a whole, while actors are responsible for only their scripted parts in a motion picture. For these reasons, the current method of analysis laid out by courts is flawed. Soon cases will arrive where directors have just as much (potentially more) involvement in the creation of a film and did not sign WMFH agreements. When this occurs an updated method is needed. The reasoning in both Casa Duse and Garcia will NOT suffice when directors who were actively committed to the motion picture from preproduction bring valid copyright claims to the court.
Currently, the entertainment industry has handled copyright concerns through the use of contracts and WMFH arrangements. Garcia and Casa Duse reiterated Hollywood’s present stance on ownership of completed film projects and the significance of obtaining written agreements declaring full ownership rights. As the court in Garcia pointed out, “the reality is that contracts and the work-made-for-hire doctrine govern much of the big-budget Hollywood performance and production world.” The results of Garcia and Casa Duse will not affect the major studios because these entities have already created a full proof contract system to protect themselves from contributors’ copyright claims. Even in the absence of WMFH agreements, producers still are deemed the authors of films by courts. Directors, and many other key contributors, have felt the courts’ preference for naming studios and productions companies as the rightful owners of creative material. The main tragedy within this realm of law seems to be when a director, who contributes just as much as producers, has a valid copyright ownership claim and does not sign a WMFH agreement. Courts easily turn to the Garcia and Casa Duse decisions for guidance. Yet the facts of the two cases are completely different. One cannot determine copyright ownership solely on these two cases. Once a new solution is created to replace the analysis of copyright ownership (when WMFH agreements are NOT signed) than the scope of copyright law can be expanded.
Sources:
[1] “Director.” Creative Skillset. N.p., n.d. Web. 14 Mar. 2017.
[2] Lee, Michael. “Directors Don’t Own Copyright to a Film (Sorry, Fantastic Four’s Josh Trank).” Morrison / Lee. N.p., 17 Aug. 2015. Web. 14 Mar. 2017.
[3] http://www.dailyreportingsuite.com/ip/news/producer_owned_copyright_in_film_director_s_contributions_did_not_create_rights
[4] Id.
[5] Zavin, Jonathan, and Tal Dicken. “Garcia v. Google Inc.” Loeb & Loeb. N.p., 15 May 2015. Web. 10 May 2017.
[7] Zavin, Jonathan, and Tal Dicken. “Garcia v. Google Inc.” Loeb & Loeb. N.p., 15 May 2015. Web. 10 May 2017.
[8] Garcia v. Google, Inc., 771 F.3d 647 (9th Cir. 2014)
[9] Garcia v. Google, Inc., 771 F.3d 647 (9th Cir. 2014)
[10] Obradovich, Diana C. “Garcia v. Google: Authorship in Copyright.” BERKELEY TECHNOLOGY LAW JOURNAL Annual Review 2016 31.2 (2016): n. pag. Web. 25 Sept. 2016.
