Movie Copyright Cases Filmmakers Should Know: Part 3, Copyright Authorship
This is the third and final edition of our blog on insightful movie copyright cases for film and TV industry professionals. Part 1 of the blog addressed copyright infringement and copyrightability while Part 2 discussed the fair use defense to copyright infringement. This ultimate installment discusses a joint authorship copyright case in the context of TV and movie making.
Who Is the “Author” of an Audiovisual “Work” (and the Importance of Contracts): Aalmuhammed v. Lee
Throughout the years, the question of what constitutes an “author” has arisen in the context of different forms of media. In 1884, the Supreme Court in Burrow-Giles Lithographic Co. v. Sarony stated that the author of a photograph is the “master mind,” the one “who has superintended the arrangement, who has actually formed the picture by putting the persons in position.” More than a century later, the Ninth Circuit Court of Appeals in Aalmuhammed v. Lee determined who authors a copyrighted film.
Jefri Aalmuhammed, a filmmaker and expert on civil rights figure Malcolm X, was approached by actor Denzel Washington to help in the making of Spike Lee’s 1992 film “Malcolm X.” Aalmuhammed’s contributions to the film were extensive (e.g., several script revisions, conception of two scenes with new characters, direction of Washington and other actors on set, and selection of prayers and religious practices for characters). However, his request for credit as a co-writer of the film was denied and he was ultimately credited as an “Islamic Technical Consultant.” Afterwards, he independently applied for copyright registration with the U.S. Copyright Office as co-creator, co-writer, and co-director of the film, then promptly sued Lee and others on the ground that the film was a “joint work” of which he was an author.
The Copyright Act defines “joint work” as “a [copyrightable] work prepared by two or more authors with the intention that their contributions be merged into inseparable or interdependent parts of a unitary whole.” The Court of Appeals ultimately found that “Malcolm X” was not a joint work because Aalmuhammed lacked sufficient creative control to be considered the “master mind” of the work. The court held that, “in the absence of a contract to the contrary,” the author of a movie is someone with artistic control—potentially a producer, screenwriter, director, or star actor—and in the case of “Malcolm X” the mastermind was director Spike Lee.
Use of the phrase “in the absence of a contract to the contrary” is important here as courts look to the intent of the parties when there is a claim of joint authorship, and in many circumstances that intent is recorded in a signed contract. But in cases such as Aalmuhammed where the parties’ intent is disputed or unclear, courts must look at other aspects of the relationship and creative process to infer intent. As it turned out, several of Aalmuhammed’s contributions made their way into the final film, but Lee always had the final word on what made the cut. That decisionmaking autonomy was strong evidence of the lack of joint authorship.
The court in this joint authorship copyright case also considered the policy considerations of the Copyright Clause of the U.S. Constitution. The court stated that it would not “promote … Progress” of artistic works to vest authorship rights in anyone who made a copyrightable contribution to a film. If that were the case, everyone from the director down to a makeup artist would have equal ownership in a film. In the court’s view, if that were the case, filmmakers like Spike Lee, “could not consult a scholarly Muslim to make a movie about a religious conversion to Islam, and the arts would be the poorer for that.”
Aalmuhammed also illustrates how useful contracts are for filmmakers to nip potential disputes in the bud. Did Aalmuhammed and Lee have to go through a drawn-out legal battle? Perhaps not, if they had simply signed a contract. Not all filmmaking projects have the financial and legal resources to obtain licenses from every contributor. Given that reality, courts will often find that contributors to a film or TV show have granted implied licenses. Nevertheless, proactively agreeing to legally enforceable terms can usually spare all involved parties several headaches.
Conclusion
Copyright considerations are important for TV and filmmakers and the cases presented throughout the entirety of this blog series illustrate the different decisions that such artists should consider and think about during the creative process. In exploring copyrightability, copyright infringement, fair use, and joint copyright authorship issues, we hope these movie copyright cases have shed ample light for film and television professionals to navigate the intricacies of the discipline.
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