In 2014 and again earlier this year, the U.S. Court of Appeals for the Ninth Circuit considered in Garcia v. Google whether an actor in a film owned the copyright in her five-second performance in the absence of either joint authorship or a work-for-hire agreement. A divided three-judge panel initially ruled for the actor,1 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.”2
The focus of attention on the subject of film authorship (and ownership) shifted east this summer when a three-judge Second Circuit panel in 16 Casa Duse v. Alex Merkin3 decided—without dissent—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.”
