As Between the Director and the Producers, Who Owns a Movie’s Copyright?

When the Academy of Motion Picture Arts and Sciences hands out the award for Best Picture, the award goes to the movie’s producers. The director, the actors, the cinematographers, make-up artists, and so forth, all get their own awards, of course. But Best Picture goes to the producers. As it should be. They are the ones who pull the movie together: they arrange for the screenplay (either to be created or to be licensed); they hire everyone; they finance it; they pitch it to financiers, actors, other producers, directors. Sometimes they are also closely involved in the movie’s creative vision. It’s not unusual for directors to also be producers, or for the producers to participate in the direction of and screenwriting for the movie. Other producers (often “executive producers”) view matters at a much higher level: they’re content to organize, finance, hire and consult.

So, from a business perspective, a producer may legitimately be said to “own” a movie. But do the producers automatically own the copyright in the movie? Until very, very recently, I would have thought the answer was clearly and obviously no. The director is the one who overseas all day-to-day creative decisions. The producers might have a vision, and the vision might be quite creative, but the director is the one implements the myriad little creative decisions that bring the vision to life. He or she tells the actors, camera operators and lighting operators what to do, or at least oversees it all. The director decides whether a scene is complete or if it needs to be shot again. If the make-up isn’t right, the director sends the actor back to get it fixed. If anyone should own the copyright, it’s the director.1

A still from the short film *Heads Up*.

A still from the short film *Heads Up*.

There Are Works Made for Hire, then There Are Real Works Made for Hire

This doesn’t quite jibe with the business of making movies. It’s the producers, after all, who are in charge of getting the movie made, screened and distributed. But this incongruity is easily mended: the producers just have to make sure the director and the other contributors (actors, etc.) execute a “work made for hire” agreement. Indeed, the drafters of the Copyright Act understood this problem and set the Copyright Act up to facilitate making producers the authors of movies.2

The way “work made for hire” agreements work is that the beneficiary of the agreement (the movie producers, in this case) are legally deemed to be the author of the creator’s contributions to the work (i.e., the movie). Since ownership of a work’s copyright exists, at least initially, in the work’s author or authors, this means the beneficiary ends up with the creator’s copyright in the work. But it means more than that. It’s more than a transfer of a copyright that the creator (very briefly) held. In a sense, what gets transferred is all the protectable creativity and originality that the creator put into the work. Normally, that’s a purely semantic difference, but in this case, it might be quite significant.3

Now, two quick points so you don’t get confused by semantics. There are two types of “works made for hire.” The usual type arises where an employee creates a copyrightable work in the course of his or her employment. In that case, the employer is deemed the “author” of the work. When it’s hard to tell if someone is an employee or an independent contractor, courts don’t look to what you call them or how you treat them for tax purposes, but at how much control you exerted over the creator during the creative process, not over the creative process itself. Thus, the author of computer code is the employer where the creator created the code during regular business hours, at the employer’s location, using the employer’s equipment, even if no one provided any input at all to the actual code.

The kind of “work made for hire” at issue with a movie is different. This kind applies even to non-employees, but only if (1) there is something in writing, signed by the creator, using the magic words, “work made for hire”; and (2) the work in question falls into one of nine categories. These categories are, for the most part, pretty obscure or limited: atlases, tests, translations. But one of the categories is for motion pictures. As I said: this was designed to make it easy to the avoid the problem caused by the collaborative nature of filmmaking.

There is also a contract called a “Work for Hire Agreement” that, despite its name, doesn’t actually result in a work made for hire. Instead, it just transfers the copyright from the creator to the beneficiary. The copyright is owned, very briefly, by the creator, then is immediately transferred to the beneficiary. This is 95% of the time plenty good, but it’s not, strictly speaking, a work made for hire, where the ownership vests immediately with the beneficiary.4

Just a Head’s Up, but I Didn’t Get a Work-for-Hire Agreement from the Director. That’s OK, Right?

Unfortunately, things didn’t go quite so smoothly for an independent short film called Heads Up, released in 2012. The producers weren’t powerful Hollywood types, but they did everything a producer needed to do: purchased the rights to the screenplay, financed it, hired the cast and crew, and got them all to sign work made for hire agreements.

All except the director. The director never signed. The producers kept asking him, but he never signed, even as the time to start shooting film approached. The producers must have decided that it was better to keep to the production schedule than to ensure they had the director’s work-for-hire agreement sewn up. Making a major change to a production schedule can wreck the whole project. I’m not at all sure what the director was thinking. Surely his failure to sign was deliberate, but what was he trying to get out of the producers? One may speculate, based on hints in the record. First, the director may have been holding out for a piece of the movie’s copyright (he later tried to characterize the movie as a “joint venture”). Second, he may have had creative differences with the producers.

Whatever the problem was, it only got worse. After the movie was made, and the director still wouldn’t sign the work made for hire agreement, the producers went about promoting the movie anyway. They set up an invite-only screening and reception, probably to generate buzz for it. But the director threatened the venue and the event was canceled.

The director’s legal position, at this point, was necessarily that he was the sole owner of the copyright in the movie and, therefore, even the producers couldn’t show the movie to the producers. The reason is that, if were only a part owner of the movie’s copyright, he couldn’t stop the other co-owners from doing what they liked with the movie (and they couldn’t stop him). This painted the director into something of a corner, which he might come to regret later.

The director’s interference with the screening was the final straw, and the producers filed suit against the director, 16 Casa Duse v. Merkin. They went after him—and his lawyer—with hammer and tongs. First, they obtained a temporary restraining order preventing further “interference.” Then they got that converted into a preliminary injunction. Then they moved for summary judgment on claims of copyright ownership and “tortious interference” with the screening event, plus sanctions and attorney’s fees. The trial court granted the producers’ motion on all counts, awarding them the copyright in the movie, nearly $2000 for the screening event, and over $185,000 in attorney’s fees.5

Like a Multiple-Choice Question, Where None of the Answers Is Correct

On appeal, the parties presented the Second Circuit Court of Appeals with the following multiple-choice question:

As between the director and the producers, who owns the copyright in the motion picture Heads Up?

A. The director owns the entire copyright in the motion picture Heads Up.

B. The producers own the entire copyright in the motion picture Heads Up.

C. The director owns the entire copyright in his contributions, and only his contributions, to the motion picture Heads Up. The producers own the copyright in all the other contributions to the motion picture.

The correct answer is actually: “D. The director and producers jointly own the copyright in the motion picture Heads Up. But the parties deliberately removed this option. The producers did because they didn’t want to share the copyright with the director, whom they had come to loathe. The director did because, as noted above, he had no choice. In order to have had the right to interfere with the screening, he needed to have sole ownership in some copyright related to the movie. For him, either answer A or C would do.

The reason the director couldn’t present option “D” is that joint owners of a copyright may do with the copyrighted work what they please, regardless of the objections of the other co-owners. They do have to “account” for any profits, in proportion with the other co-owners’ share (so if the film earned $100,000, and you owned 25% of the film’s copyright, you’d be owed $25,000). Thus, all co-owners can do is sue for an “accounting,” not for copyright infringement. The director might have been content with a 50% ownership stake in Heads Up’s copyright, but he cast his die for something else when he prevented the screening. He wasn’t going to like the result.

The director must have thought he would to steep a hill to climb if he wanted to argue he was the sole owner of the copyright in the entire movie. So he put forward a novel legal theory: he was the sole owner of the copyright in his contributions to the film. Under this theory, copyright in a complex work like a movie actually consists of dozens of copyrights relating to different creative contributions. The chief cinematographer has his or her own copyright, the make-up artist has his or her own, each actor has his or her own, and so forth. The point of work made for hire agreements was to bundle these disparate copyrights under one owner.

The Fall, Rise and Fall of a Crazy Legal Theory: The Sage of Innocence of Muslims

This was so crazy a theory that the trial court sanctioned the director’s lawyer for even making it (in large part—there were other reasons). Most legal scholars would have agreed. But then, in 2014, this legal theory became the law of the Ninth Circuit Court of Appeals6 You might have heard about it: an actress had sought to force Google to take down the film7 Innocence of Muslims, an amateurish film that criticized Islam, and not in a very nuanced or thoughtful way. She contended that she had an interest in the movie’s copyright, which conferred standing to enjoin continued public performance of the film on Google’s YouTube platform.

She had a few highly unusual facts on her side. First, she had been led to believe that she was acting in an entirely different movie (and certainly not one designed to stir up trouble). Second, different lines had been dubbed over the actual lines she performed. Third, she did not sign a “work made for hire” agreement, which would have been customary. Fourth, because of the angry reaction the film had provoked, she had received several death threats from people who did not know or did not care that she had no responsibility for the “finished” product.

She moved for preliminary injunction against the further showing of the film. The trial court was not sympathetic and denied the motion. But a divided three-judge panel of the Ninth Circuit was quite sympathetic, so much so that it reversed the trial court’s denial and preliminarily enjoined Google from publicly performing the film, which pretty much never happens8. The panel reasoned:

  • The threshold of creativity for a work to be copyrightable is very, very low.
  • Acting requires enough creative choices that an actor’s performance is copyrightable.
  • Therefore, the actress has a copyright in her performance.

Like the director of Heads Up, the actress in Innocence of Muslims could not argue mere joint authorship because that wouldn’t be enough to block Google: so long as at least one co-owner permitted the public performance of the movie, the other co-owners could do nothing about it (except share in the profits).

Several months later, the full Ninth Circuit reversed the panel and dissolved the preliminary injunction. It did not doubt that acting is a creative act, and that, in theory, you could have a copyright in a particular performance. But it firmly held that a work was a work—and, in particular, a movie was a movie—and not a collection of little, separately copyrighted sub-works. There was only one copyright for a movie (which isn’t the same thing as saying there was necessarily one author), and either the actress owned a tiny piece of it, or she owned none of it. Either way, the injunction couldn’t stand.9

All of this Ninth Circuit sturm und drang took place very quickly, while the appeal in the Heads Up case was pending. The director saw his novel theory gain and lose legal authority in the space of a few months. It must have been agonizing. Anyway, the Second Circuit followed the Ninth Circuit on the crucial issue of whether a movie can be sub-divided into multiple copyrights10 and affirmed the trial court.11

Production Domination!

But we’re not quite done yet. Even if the director can’t own the copyright in his own contribution to the movie, could he not be the sole owner of the copyright in the movie itself? In the Second Circuit, at least, that means identifying the “dominant author.” Remember, this inquiry is only necessary because the parties won’t permit the obvious solution to this dispute: joint authorship.

At this point, the Second Circuit’s decision, in my opinion, runs off the rails. It recognizes that there are no guidelines for determining the “dominant author.” But considering the Supreme Court’s guidance, quoted elsewhere in the Second Circuit’s opinion, that “as a general rule, the author is the party who actually creates the work, that is, the person who translates the idea into a fixed, tangible expression entitled to copyright protection—the question of ”dominance” would have to be seen through a lens of creativity and fixation. Who did the most to fix the conception of the film into a tangible medium. That’d have to be the director, right? It’s the director who tells the camera operators to roll tape and the desired angles, who tells the actors where to stand (and oversees their acting), who tells the lighting crew where to set up, and who decides when a scene has been adequately filmed.12

But the court found, instead, that the producers were the “dominant author” because they “exercised far more decision-making authority.” Now, copyrightability is frequently framed in terms of creative decision-making: how many choices did the putative author have, and were they creatively meaningful. But the Second Circuit has something completely different in mind: decisions as to the project itself, the business end of the film. “[The producers] initiated the project; acquired the rights to the screenplay; selected the cast, crew and director; controlled the production schedule; and coordinated … the film’s publicity and release.” Further, all third-party agreements—including the “work made for hire” agreements—were with the producers, not with the director, which is standard practice in the industry—it’s almost what the producers are for.

With respect, but the Second Circuit’s reasoning (though not necessarily its conclusion) is wrong. If it were trying to determine whether the producers were the director’s employer for purposes of “work made for hire”13, then maybe these factors would be relevant. But they aren’t because there’s no question that the director was an independent contractor.14 The Second Circuit got these factors from Thomson v. Larson, a case about whether the plaintiff’s contributions to the script of Rent made her a joint author, not whether it made her a sole author. She had co-written the script with the musical’s director. The court held that, despite her significant contributions, the director was the sole owner of the copyright in Rent. It was a pretty close call, but the court decided that, in the end, the director had the final say about what went into the musical.

The Second Circuit misapplied Thomson, and pretty badly, too. First of all, the case wasn’t about “dominant authorship,” but about joint authorship. Those are entirely different subjects. Second of all, Thomson’s focus was, appropriately, always on the creative output, not only who controlled the project (though they were pretty much one in the same with Rent). By contrast, the Second Circuit here was focused on control of the project.

Can Creativity Be Bundled?

This isn’t quite to say that the Second Circuit’s conclusion was incorrect. The producers might well be the dominant authors of the film, but not because of their financial and logistical work. They’re authors because everyone involved in the film except the director signed “work made for hire” agreements. These agreements don’t merely transfer a pre-existing copyright (though it may be possessed by the author for but a moment). They make the producers the author in the place of the other contributors.15 The cinematographers, the make-up artists, the actors, the set designers, etc.—their creativity is, legally speaking, the producers’.

Now, let’s weigh all those contributions against the directors’. The director is surely the single most important person involved in creating the film, but is his contribution greater than everyone else’s combined? If you had to pick one, you’d probably pick against the director.16

If there’s a flaw in this reasoning it’s that it assumes that, but for the “work made for hire” agreements, everyone involved in the film would all be sharing joint authorship in the film. If there were, say, 20 such people (including the director), each person would end up with 5% ownership of the movie’s copyright, regardless of how much each contributed. But can such contributions create joint authorship, especially when one person—the director—contributes far, far more than everyone else? We honestly don’t know because producers of movies or of music don’t generally take the chance: they make quite sure that everyone has signed their “work made for hire” agreements17 before the project begins.

Conclusion: Maybe a Correct-ish Result But the Reasoning Could Cause Mischief (And it Was Really a Joint Work)

Unfortunately, for now, we now have legal authority that could plausibly (but incorrectly) be read as giving anyone who handled the financing or logistics of a creative project a claim to the authorship of the resulting work. Under this view, the producer of a record is the author of the sound recording’s copyright, not the musicians. This would represent a huge shift in power. The Copyright Act of 1976 was designed to empower the creators against the business types. Over time, the business types have won back much of that power through onerous contracts (e.g., the miserable “360 Degree Deals” in artist contracts). The Second Circuit’s error in 16 Casa Duse threatens to shift what little power remains to creators back to the business types.

Oh, why am I so certain that the director and producers ought to be joint authors? Joint authorship requires that (1) the co-authors have made copyrightable contributions to a single work, and (2) they intended to be co-authors.“ The idea is to exclude those who made important but minor contributions to a film. For example, when he was making Malcolm X, Spike Lee hired someone to consult with him about Islam, and this consultant contributed some significant dialogue, translations from Arabic, and even an entire scene to the film. But that didn’t make him a joint author with Spike Lee, or else anyone who helped a creator with a project would have a claim to the copyright. In the end, it was up to Spike Lee18 to accept or reject the consultant’s assistance.19

With Heads Up, we have two parties who make crucial creative decisions that add up to the finished movie. The director made myriad little creative decisions, and had the authority to accept or reject the creative contributions of the other participants, like the actors. But the producers exercised ultimate authority on the big-picture decisions. When their creative vision clashed with the director’s, the producers win. It’s their film. That’s why we sometimes have “director’s cuts”20 But even they can’t reject everything the director has provided them, or else they would’t have a film. Like it or not, a director and a producer are stuck with each other.

The district court actually addressed this question and found the movie not a joint work—incorrectly in my view. The court reasoned that the parties couldn’t have intended to share authorship because the producers kept insisting that the director sign a work-for-hire agreement. This misses the point. The intent isn’t about the parties’ legal relationship. It’s about their creative relationship: do the parties intend to combine their contributions for an overall creative vision that they (more or less) share? Even if they disagreed about the details, the director and the producers knew what movie they were making and that their contributions were significant. By contrast, Spike Lee’s consultant only knew about the things he was asked to consult about, not the overall movie.

When it comes to authorship, it’s best to focus on the creativity. That’s what copyright is for, after all.

Thanks for reading!