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Copyright Issues in Short Films

Giselle Ayala Mateus, Esq.

The career of those who are interested in the film industry may start as an assistant for a big production or by doing some filming activity. However, whatever the path a creator uses to get into the industry, it is fundamental to understand the legal issues that may come up around the development of a short film production project. In this note, we will focus our attention to the issues related to Copyright.

Under the US Copyright laws, specifically 17 USCS § 102(a)(6), motion pictures and other audiovisual works, like short films, may be protected under copyright law. The first to know is how short films, or films in general, are defined under the law:

“Audiovisual works” are defined as “works that consist of a series of related images which are intrinsically intended to be shown by the use of machines or devices…, together with accompanying sounds.”

Here, it is important to note that the sounds accompanying a short film, maybe independently protected under copyright law, and in that scenario, prior authorization is required to use them as part of the production of the film.

Under 17 USCS § 101, sounds that accompany audiovisual works (e.g., a movie soundtrack) are also protectable as part of the audiovisual works.

Like any other work of authorship, short films’ copyright exists automatically once the work has been created and secured, in other words, fixed in a tangible medium so that it can be perceived and/or displayed for at least a transitory period of time.

Here, it is also important to note that, in general terms, copyright does not protect the ideas or concepts behind a motion picture or the characters in it. Considering this, film production companies, especially in the case of animated motion pictures, usually take legal measures to protect the motion picture as a whole and each of its characters independently.

A motion picture is complex work of authorship, made of different components. A key role is played by the screenplays of the motion picture. The screenplay is a work of authorship independent of the motion picture and requires independent protection under copyright law.

Derivative Works/Compilations

A motion picture can be a principal work or a derivative work. For instance, the movies produced after a book becomes a best seller are typical examples of derivative works.

Derivative works are works that are based on preexisting works of authorship protected under copyright law. The main purpose of a derivative work is to recast, transform, or adapt the original work. Derivative works are entitled to protection under copyright law, independently of the principal work. However, if a person, other than the author of the original work, created the derivative work, then prior authorization is required, otherwise, this could be a case of copyright infringement.

US courts have analyzed the issues relating to the protection of derivative works, and have explained that a derivative work is copyrightable as long as “[it] has a trace of originality and provides a distinguishable variation.” M. Kramer Mfg. Co. v. Andrews, 783 F.2d 421, 438 (4th Cir. 1986).

The analysis of originality is not different whether we talk about principal and derivative works. However, when it comes to determining the existence of copyright infringement, the test for originality involves additional considerations. There will be copyright protection for the principal work and there will be protection for the derivative work, but the copyright in a derivative work extends only to the material contributed by the author of such work, as distinguished from the preexisting material employed in the work. Under 17 U.S.C. § 103. Accordingly, if an unauthorized derivative work includes both derived and original elements, copyright protection will be available for the original elements only. Hiller, LLC v. Success Grp. Int’l Learning All., LLC, 976 F.3d 620 (6th Cir. 2020).

Ownership of Copyright of Films

The copyright owner of a work of authorship may be one person. However, more often than not it is a group of individuals who join efforts to create a film. In this context appears the concept of joint authorship.

Under 17 U.S.C. § 101, a work becomes a “joint work” with multiple authors when the work is prepared by individuals with the intention that their contributions be merged into inseparable or interdependent parts which form a unitary whole. Here, it is worth noting that an author is not anyone, an author is an individual who contributes in a manner such that an idea turns into a fixed, tangible expression entitled to protection.

The concept of a dominant author

It is possible that the multiple efforts of the alleged co-authors are not clear, although, they claim copyright ownership. In this scenario, the copyright laws of the US consider who is the “dominant author”. 16 Casa Duse, LLC v. Merkin, 791 F.3d 247 (2nd Cir. 2015). To determine which of the co-authors involved in the work is the dominant author, courts look to several factors: 1) who had the greatest decision-making authority, 2) the way in which the parties bill or credit themselves (evidence of the intent of authorship), and 3) the parties’ agreement with outsiders (e.g., who executed the third-party agreements).

Work for Hire

Most people working in the film industry are under a “work made for hire” agreement. The term work for hire refers to a work created by an employee within the scope of the employment, a work especially commissioned, or a work, which by the agreement of the parties is considered a work for hire. For works of hire, the employer is presumed to be the author and copyright owner, unless a contractual arrangement states otherwise.

Considering this, contributors to films (e.g., actors, directors, sound designers, and other crew members) generally do not own any part of the film’s copyright, and it is the studio that hired them who owns the entire work’s copyright.

For example, in Garcia v. Google, Inc., 786 F.3d 733, the court held that an actress did not hold a separate copyright interest in the movie she acted in, because she played no role in fixing her own performance in a tangible medium (e.g., physical film, digital).

In another case, the court denied a film director the right to maintain a copyright interest in a film, despite him having made many of the creative decisions and having not signed a work-for-hire agreement, because the production company was found to have much more decision-making authority over the work as a whole and was considered the dominant author. 16 Casa Duse, LLC v. Merkin, 791 F.3d 247 (2nd Cir. 2015).

All in all, absent an actual intention of joint ownership between two or more parties, the producer is generally the only one who can exert copyright over a film.

Is Copyright Registration Required?

As we have explained already, copyright registration is not required to have copyright protection. However, you may get a deal, investment, or support if you don’t register your work. Basically, no one wants to invest in a potential lawsuit. That said, lets explore the benefits of Copyright protection first.

The ability to bring an infringement suit. 

If someone infringes on your rights as the creator of a short film, you will need to copyright registration to file an infringement suit in court. In other words, in the United States, you need a copyright registration before you can sue for copyright infringement.

Evidence of the validity of the copyright. 

The existence of a copyright registration creates a record or evidence of the validity of your copyright. It is worth noting that, copyright protection is presumed if the registration was made before or within five years of the publication of the work.

Statutory damages. 

If you register your copyright before an act of infringement occurs, or within three months of publication, in litigation, you are eligible for statutory damages, attorney fees, and costs.

How to Register a Work

Registration for copyright can be completed online or by paper, though online registration is preferred for the registration of motion pictures. Each copyright registration requires 1) a completed application form, 2) a non-refundable filing fee, and 3) a nonreturnable deposit. A nonreturnable deposit is a copy of the work being registered. This deposit is an exact copy of the original, the “Best edition”.

The Copyright Office will consider the effective date of copyright registration as the date it receives all the required elements in acceptable form.

Deposit Requirements

For motion pictures published in the United States, a separate description of the nature and general content of the work is required. Additionally, you will be required to deposit one complete copy of the best edition of the work. Motion pictures that are published in the United States must be deposited in the Copyright Office within three months of publication in the United States by the owner of the copyright or the owner of the exclusive right of publication.

For motion pictures published outside the United States, a separate description of the nature and general content of the work and one complete copy of the best edition of the work or the work as first published must be submitted.

For unpublished motion pictures, a separate description of the work, and a copy of the work containing all the visual and aural elements covered by the registration must be submitted.

Requirements for a Copyright Assignment Agreement.

A copyright interest is always assignable. Addtionally, when it comes to works created in contexts other than in a clear work-for-hire scenario, an assignment is not only wise but usually required. The best strategy is always to include an obligation to assign into contracts entered into with freelancers and independent contractors.

An assignment of copyright must be done in writing. It is preferable for the assignment agreement to be notarized. It is not necessary to register the assignment of copyright, however, an assignment is only enforceable against third-parties is it is on record before the US Copyright Office. A short-form assignment contract and the date of assignment] can be filed.

Once the copyright rights are assigned, the assignor cannot get the copyright rights back unless the assignee consents or if the period of assignment has ended (35 years).

Looking for advice? We’re here to help. Contact the G.A.M. Law Office P.C. to schedule an appointment at +1 646 397 2396.

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