Second Circuit Rejects Film Director's Claim Of Copyright Ownership In Film, Holding The Producer Owns The Entire Work

In recently holding that a film director does not own a copyright in his individual creative contribution to a film, the Second Circuit joined the Ninth Circuit in concluding that, generally, only the undivided film as a whole is a work of authorship protectable by copyright. The Second Circuit further held that the film's producer owned the copyright to the film at issue, but left open the possibility that, in other cases, a director may be found to be the sole or joint copyright owner of a film. The ruling is a significant development in limiting the potentially crippling effect of allowing multiple individuals to claim copyright ownership in collaborative works and underscores the need for producers to obtain written agreements addressing copyright ownership in advance of commencing filming.

Factual Background

The producer, Casa Duse, purchased a screenplay entitled Heads Up and informally agreed to pay Alex Merkin $1,500 to direct the film. Each member of the cast and crew, except Merkin, entered into an "Independent Contractor Agreement" with Casa Duse, agreeing that Casa Duse would own all copyrights in the film. Casa Duse emailed Merkin a similar agreement, but Merkin did not sign it. Filming nevertheless started without a signed agreement, and Merkin ultimately completed his direction of the film. "Merkin performed his role as director by advising and instructing the film's cast and crew on matters ranging from camera angles and lighting to wardrobe and makeup to the actors' dialogue and movement."

After Merkin completed direction of the film, Casa Duse and Merkin entered into a "Media Agreement" that allowed Merkin to edit, but not license, sell or copy the film footage without Casa Duse's permission, while the parties continued to negotiate ownership of the film. After negotiations broke down, Merkin registered a copyright in the film and used threats of a cease-and-desist order to force a film festival to cancel a screening of Heads Up, causing Casa Duse to miss the deadlines for four film festivals. Casa Duse then commenced an action asking for a declaration that Merkin did not own a copyright interest in the film, and Merkin counterclaimed for copyright infringement. The district court granted summary judgment to Casa Duse, and the Second Circuit affirmed.

The Second Circuit Holds That a Film Cannot Be Severed Into Multiple Copyrighted Works

At the outset, the Second Circuit noted that it had "never decided whether an...