Introduction
In Richlin v. Metro-Goldwyn-Mayer Pictures, 531 F.3d 962 (9th Cir. 2008), the heirs of one coauthor of the treatment that served as the basis of "The Pink Panther" series of movies asserted an interest in the motion picture copyright. The Ninth Circuit affirmed a district court's grant of summary judgment and agreed with the district court that the coauthor of a story treatment is not necessarily the coauthor of a subsequent movie based on that treatment, and therefore cannot necessarily claim a copyright interest in the movie. Accordingly, renewal of the copyright in the motion picture had no impact on the treatment coauthor's interest.
Background
In April 1962, Maurice Richlin and Blake Edwards wrote a 14-page treatment for a movie then entitled "The Pink Rajah" – later renamed "The Pink Panther." In May 1962, Richlin and Edwards entered into an employment agreement with the Mirisch Corporation to write the screenplay for the movie as a "work made for hire." 531 F.3d at 965. Later that same month, Richlin and Edwards executed a literary assignment agreement, transferring and assigning all of their rights in the Pink Panther story to Mirisch, including the right to copyright the treatment, renew the copyright, and retain all benefits therefrom. Id.
The first "Pink Panther" movie was released in 1963, followed by nine sequels, many of which credited Richlin and Edwards with creation of the characters. The first such movie indicates a copyright notice of 1963 in the name of Mirisch and G&E Productions. The U.S. Copyright Office issued a certification of registration for the "motion picture" entitled "The Pink Panther" in 1964. Id. The treatment itself was never registered or separately published.
Richlin died in 1990. The 1963 copyright on the movie was set to expire in 1991, but it was renewed that year by Mirisch's successors-in-interest, MGM-Pathe Communications Co./ Geoffrey Productions Inc. (collectively "MGM"). No one attempted to renew any copyright on the treatment or the screenplay. Id. at 966.
In November 1992, MGM sent Richlin's widow a check for "payment in full for any rights used in or relating to [Son of Pink Panther] that are owned or controlled by Maurice Richlin or by you pursuant to the Writers Guild of America agreement or otherwise." Id. at n.6. Though the check was paid pursuant to a 1965 settlement agreement between Richlin, Edwards and Mirisch, the money and the letter alerted Richlin's heirs to the possibility that they might own rights to the Pink Panther series.
Richlin's heirs filed suit in federal court in the Central District of California seeking declaratory relief and an accounting. They asserted a 50% renewal interest in the treatment and all derivative works, including all of the Pink Panther movies. The district court found that the plaintiffs had no such rights and granted summary judgment in favor of MGM. On appeal, the ninth circuit agreed. Richlin v. Metro-Goldwyn-Mayer Pictures, 531 F.3d 962 (9th Cir. 2008).
Richlin did not coauthor the movie and thus has no copyright interests in the movie
The Richlin heirs asserted two legal theories in support of their claim, both of which were rejected by the courts. First, the plaintiffs claimed that because Richlin coauthored the treatment, which was a substantial component of the movie, he is also by definition a coauthor of the movie. 531 F.3d at 967.
As coauthor of the movie, Richlin would have an interest in the movie's copyright. Although Richlin assigned all copyright renewal rights, he died prior to the renewal date. An assignment of renewal rights is only effective if the author/assignor is alive at the time of the renewal term, because only then does the renewal interest actually vest in the author. Stewart v. Abend, 495 U.S. 207, 220 (1990). The Richlin heirs claimed that because Richlin died before the renewal term, the pre-vesting assignment was ineffective and the copyright interest reverted to them. 531 F.3d 962, n.5.
In determining whether Richlin coauthored the movie, the courts turned to Aalmuhammed v. Lee, 202 F.3d 1227, 1234 (9th Cir. 2000). Aalmuhammed sets forth three criteria to determine whether a work is jointly authored as defined under section 101 of the 1976 Copyright Act: [1]
1) Whether the "putative authors ma[de] objective manifestations of a shared intent to be coauthors;" a contract evidencing that intent is dispositive;
2) Whether the "author superintended the work by exercising control -- often the most important factor; and
3) Whether "the audience appeal of the work" can be attributed to both authors and whether "the share of each in its success cannot be appraised." Id.
The courts agreed that Richlin undoubtedly coauthored the treatment. However, the treatment "is not the appropriate reference point." 531 F.3d at 968. The lawsuit was premised on the claim that Richlin's coauthorship of the treatment automatically made him coauthor of the copyrighted motion picture. Therefore, the court had to apply the Aalmuhammed factors to determine whether Richlin was coauthor of the movie, not the treatment. Id.
The first Aalmuhammed factor went against the plaintiffs, as Richlin executed an Assignment dispositively indicating that Richlin "did not intend" to be a coauthor by virtue of his manifested intent to convey away all present and future interests in the treatment and its derivative works. Id. at 969-970. Richlin also executed an employment agreement indicating that the script was a "work for hire," another contractual provision inconsistent with an intent to establish coauthorship. Id.
The second Aalmuhammed factor easily lay in MGM's favor, as Richlin never exercised any supervisory powers or control over the movie. Id. at 970. Though Richlin co-wrote the screenplay as a work for hire, that does not equate to control over the creation of the movie. Id.
Though the third Aalmuhammed factor arguably favored the plaintiffs, the court stated: "Given that the two primary Aalmuhammed factors weigh most heavily in favor of Appellees, we hold that Richlin was not a coauthor of the Motion Picture. Therefore, there is no renewal interest in the Motion Picture that might conceivably have vested in the Richlin heirs under a theory of coauthorship." Id.
The treatment was not copyrighted by virtue of publication of the movie
The plaintiffs' second argument theorized that although the treatment itself was never published or the subject of federal statutory copyright, it obtained statutory copyright protection by virtue of publication of the movie, which incorporated portions of the treatment. The Richlin heirs claimed that because Richlin died before the renewal rights in the treatment vested, those rights reverted to them. Id. at 971. They further asserted that MGM's renewal of the movie copyright renewed their statutory copyright in the treatment, and because the movie incorporates the treatment, they co-own the movie's copyright. Id.
Under the 1909 Copyright Act, which governed the treatment, unpublished works were protected by state law while published works received federal copyright protection. Id. Accordingly, when Richlin and Edwards assigned the treatment to Mirisch, California common law copyright protections applied – that law held that an author's transfer of rights in a work prior to first publication completely and forever divested the author of his copyright interest, making the transferee the copyright holder. Id. at 972. Mirisch's subsequent publication of movie containing copyrightable elements of the treatment secured federal statutory protection for the movie and protected the screenplays and treatments incorporated in the movie. Id. at 973 and 975-976.
However, the court noted that although the movie's federal copyright protection did extend to those copyrightable elements of the treatment that were components of the movie, "this did not constitute publication of the Treatment ‘as such' – i.e., as a work standing alone." Id. at 973. The court deferred to the Register of Copyright's interpretation of the copyright statutes as holding that publication of a portion of a work does not necessarily constitute publication of the work as a whole. Id. Therefore, the movie's publication that incorporated parts of the treatment did not invest the treatment with separate statutory protection. Id. at 973 and 975-976. [2]
Richlin and Edwards would have had to separately and independently publish the treatment in order to secure copyright protection for it under the 1909 Act – they failed to do so. Id. at n.14. Because the treatment never received independent federal copyright protection, there was no right to renew anything, and nothing reverted to the Richlin heirs. Id. at 974 and 976-977.
Conclusion
The lesson from Richlin is clear – in order for an author to claim copyright protection for a treatment, screenplay, or any other components of a motion picture, he or she must secure federal copyright protection by separate and independent publication and/or registration of the treatment or screenplay.
The Richlin case may have had more to do with the plaintiffs' unsubstantiated greed than with resolving challenging issues of law. The contracts Richlin executed with Mirisch were clear and conclusive; the check Richlin's widow received related to a settlement agreement, not questionable current copyright interests. The court did not have to forge new legal ground in deciding this case – it merely showed the plaintiffs why their arguments failed under existing precedent. The plaintiffs likely spent a lot of money on legal fees to fight this losing battle.
The levity in the court's opinion reflects the lack of challenge it faced with this case. The opinion begins with: "Inspector Jacques Clouseau, famously unable to crack the simplest of murder cases, would most certainly be confounded by the case we face. While Inspector Clouseau searched for the answer to the question, "Who did it?" we must search for the answer to the question, "Who owns it?"… Although the Richlin heirs have developed several theories that could supply the answer to the question, "Who owns it?", unlike Inspector Clouseau, they have not quite stumbled upon a theory that favors them." CITE
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[1] Section 101 of the 1976 Copyright Act defines "joint work" as "a work prepared by two or more authors with the intention that their contributions be merged into inseparable or interdependent parts of a unitary whole." 17 U.S.C. section 101 (1976). The copyright claims at issue are governed by the 1909 Copyright Act, not the 1976 Act, and the 1909 Act does not expressly address joint authorship. However, courts regularly applied the common law definition of join authorship to the 1909 Act. Section 101 of the 1976 Act incorporated the same definition that had been in use in the courts. Therefore, the Richlin courts determined that it was appropriate to reference interpretations of the 1976 Act language to the Richlin case, even though the 1976 Act did not, in general, apply to the underlying claims.
[2] The court referenced a decision by the Copyright Office Board of Appeals that "an unpublished underlying work that is incorporated into a statutorily copyrighted motion picture does not receive a statutorily copyright independent of the motion picture's copyright." CITE, citing Husbands, Copyright Office Board of Appeals Letter, Control No. 10-600-754-2(C), at 6 (May 14, 2002). |
