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Can't Copyright Just Part of a Collaborative Work, 2nd Cir. Rules

By Casey C. Sullivan, Esq. on July 01, 2015 | Last updated on March 21, 2019

Contributors to a creative work, whose contributions are inseparable from that work, cannot copyright their contribution alone, the Second Circuit ruled on Monday. The decision came from a dispute between an independent film's producer and its director, after the director attempted to copyright the raw footage of the film and prevent the producer from using it.

That film director cannot copyright his contribution to the collaborative work, the court ruled. The case is the first time the Second Circuit has taken up the issue and has large implications for media, film, and the creative arts.

The film at the center of the dispute is Heads Up, a low-budget, independent short film. IMDB describes the film as:

an edgy, comedic story of two long time friends and somewhat surrogate siblings who love each other to death. When suspicions of trust and loyalty arise at the weekly poker game the situation erupts in an extreme way -- because nobody fights like siblings do!

It might not be Fellini, but it sounds a bit better than most Michael Bay schlock.

The fighting was not limited to the film's plot, of course. After production completed, the film's producer, Robert Krakovski, principal for 16 Casa Duse, and its director, Alex Merkin, soon disagreed over artistic control. Eventually, Merkin registered a copyright for the film's raw footage as its sole author.

When Krakovski attempted to screen the film at the New York Film Academy, Merkin sent the Academy a cease and desist order. Casa Duse sued, seeking a restraining order and to invalidate the copyright. The district court granted summary judgment to Casa Duse on all claims, awarding it just under $2,000 in damages and nearly $200,000 in attorney's fees.

When Merkin appealed, the Second Circuit began by reviewing "works of authorship" under the Copyright Act. While many works are listed as examples, from books to motion videos, no constituent parts are -- there are books, but not chapters, films but not footage. This absence suggests, the Second Circuit reasoned, that only whole, distinct works can be copyrighted.

The Court's ruling tracks the Ninth Circuit's recent decision regarding The Innocence of Muslims. That work, a bonkers mix of dubbed voices and Islamophobia, was blamed for violent riots from Tunisia to India. Youtube was ordered to pull the film after an actress claimed a copyright interest in her performance. A Ninth Circuit panel originally agreed but was overturned en banc, with the circuit deciding, like the Second, that to allow individuals to copyright their contributions to a collaborative medium would make "Swiss cheese of copyrights."

Directors need not give up hope, however. Merkin, and other future Godards, Tarintinos, and Taymors, can still copyright their works -- just as sole or joint authors of the film, not its constituent parts.

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