05 November 2004

Patronage Again

The Ninth Circuit has now joined the Fifth Circuit in determining that the producer is the "author" of a film for purposes of restoring copyright under WIPO… under Mexican law.

The parties present two competing theories of who is an "author" of a motion picture under Mexican law. ARRC argues that the individual screenwriters, composers and directors (of whom ARRC is the assignee of many) are the authors of the films under Mexican law, while Ivanova and Columbia argue that the production companies are the authors.

Authors' Rights Restoration Corp. v. Ivanova, No. 03-55238 (9th Cir. Nov. 5, 2004) (unpub.), slip op. at 4 (PDF, 23kb).

Although the Ninth Circuit characterizes the Fifth Circuit's opinion in Alameda Films SA de CV v. Authors Rights Restoration Corp., 331 F.3d 472, cert. denied, 124 S. Ct. 814 (2003), as "well reasoned," I can't entirely agree with this. It still leaves the sticky issue of who really is "the author" of a film. Contrary to the claims of certain French directors (who later abandoned the position and admitted they took it just to get publicity) in the 1960s, it's not the director.

Is there then no American auteur director? Perhaps there is one. One man who thinks up his own stories and produces his pictures and directs them too. And also serves as his own cinematographer. Not to mention he also does his own editing. All of this connected with an intensely personal and unique vision of the world. That man is Russ Meyer.

William Goldman, Adventures in the Screen Trade 105 (1983). Who was Russ Meyer? Glad you asked.

Unfortunately, that doesn't get us a whole lot closer to who really is "the author" of a motion picture (including, for the sake of completeness, TV episodes). If one goes by the Copyright Act's core requirement—each individual who provides "original" material to a work has an authorship interest—there are at least eight or nine "authors" for every film, ranging from the director to the set designer. The producer, however, is not one of them—ok, a cinema producer is not one of them, since in TV the term "producer" for an episode often means the screenwriter for that episode—and the production company certainly is not. Except, of course, that the Act specifically defines the production company as the "author" of a film. Really, though, the production company's only creative contribution to most films is the accounting…

In any event, I am forced to agree that the Fifth Circuit's opinion is a clever exercise in statutory interpretation. That, however, is not enough to make it "well reasoned." Perhaps it protects the settled expectations of the parties… but that's not at all the same thing in this context.