In 2014 and again in May of this year, the federal Ninth Circuit Court of Appeals in California considered in Garcia v. Google, Inc. whether an actor in a film owned the copyright in her five-second performance absent both joint authorship and a work-for-hire agreement. Surprising many, a divided three-judge panel initially ruled for the actor. But the court sitting en banc subsequently decided otherwise because "[the plaintiff's] theory of copyright law would result in ... [a] legal morass... splintering a movie into many different 'works' even in the absence of an independent fixation."

This summer, a three-judge panel of the Second Circuit Court of Appeals in New York came to a similar conclusion -- without dissent -- in 16 Casa Duse, LLC v. Alex Merkin et al., deciding that a production company owned the contribution of a director to a film, also in the absence of either joint authorship or a work-for-hire agreement. Judge Robert D. Sack, who wrote the opinion, generally followed the trail blazed by Garcia but in some respects went beyond it. The court separately analyzed copyrightability of the director's "inseparable" contribution to the completed film and then addressed ownership of raw footage by applying a test of "dominant author."

Although both decisions awarded ownership of copyright to film producers without work-for-hire agreements, one should not count on that happening every time the question is raised. For one thing, the Supreme Court hasn't addressed the question and other federal circuits still may go their own way. Second, while the ownership of contributions by a film's director or fleetingly-seen actor might be clear enough, determining ownership of other high-level contributors could be less clear. Thirdly, the Copyright Act spells out a procedure that is supposed to settle copyright ownership of films and other audiovisual works without need for litigation: execution by independent contractors and their employer of a work-for-hire agreement. Unless and until the Copyright Act is amended, a work-for-hire agreement still seems the safest bet.

Neil J. Rosini is a partner at the entertainment law firm Franklin, Weinrib, Rudell & Vassallo in New York

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