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?" In 1962, Maurice Richlin coauthored a story treatment (the "Treatment")
The material facts are largely undisputed. In April 1962, Maurice Richlin and Blake Edwards coauthored a fourteen-page Treatment initially entitled The Pink Rajah, but later renamed The Pink Panther. The Treatment served as the basis for the well-known motion picture, The Pink Panther, and numerous derivative works. It appears that the Treatment set forth many of the plot elements and characters, including Inspector Clouseau himself,
Richlin and Edwards entered into an employment agreement dated May 14, 1962 (the "Employment Agreement") with the Mirisch Corporation of Delaware ("Mirisch") to write the screenplay for the Motion Picture.
Later that month, on May 24, 1962, Richlin and Edwards executed a literary assignment agreement (the "Assignment") whereby they transferred and assigned "forever ... that certain story (which term shall cover all literary material written by [Richlin and Edwards] in connection therewith including any adaptations, treatments, scenarios, dialogue, scripts and/or screenplays) entitled: `Pink Rajah' also entitled or known as `Pink Panther'" in exchange for $1 "and other good and valuable consideration in hand" paid by Mirisch. Mirisch also received "the right to use [Richlin's and Edwards's] name[s] as the author of the literary composition upon which said adaptations, or any of them, are based." The Assignment further provided that if Mirisch copyrighted the Treatment, Mirisch "shall enjoy its rights hereunder for the full duration of such copyright or copyrights, including any and all renewals thereof."
In 1963, The Pink Panther was released and distributed in theaters to great acclaim. It was followed by nine movie sequels,
The Certificate of Registration identifies the claimant and author as "Mirisch-G & E Productions." The certificate lists the date of publication as March 18, 1964, but notes that the copyright notice on the Motion Picture bears a date of 1963. The Richlin heirs concede that neither the Treatment nor the screenplay was ever separately published or registered for federal copyright protection.
Richlin died on November 13, 1990. The original term of copyright in the Motion
The Richlin heirs filed suit in the United States District Court for the Central District of California seeking declaratory relief and an accounting. They claim a 50 percent renewal interest in the Treatment and all derivative works. During the course of this litigation, the theories undergirding this claim have evolved. The complaint relies on the theory that publication of the derivative work (the Motion Picture) effectuated publication of the underlying work (the Treatment). Under this theory, when MGM renewed the Motion Picture's statutory copyright in 1991, this renewed the copyright in the Treatment on behalf of the Richlin heirs, which gave the Richlin heirs an interest in the Motion Picture's renewal copyright. These principles carry some theoretical weight in copyright law; however, the Richlin heirs failed to renew their statutory copyright, if any, in the Treatment in 1991. That may explain why, by the time the district court granted summary judgment in favor of MGM, the Richlin heirs had abandoned their argument based on a statutory copyright in the Treatment. Instead, they argued that they have a copyright interest in the Motion Picture as coauthors based on Richlin's coauthorship of the Treatment, which was incorporated into the Motion Picture. The district court analyzed the requirements of a "joint work" prepared by coauthors, who under copyright law would each be deemed an owner of the copyright. The court rejected this theory because, under the factors set forth in Aalmuhammed v. Lee, 202 F.3d 1227, 1234 (9th Cir.2000), Richlin had no control over the Motion Picture, and there was no manifestation of intent — by contract or otherwise — that Richlin and Edwards would be coauthors of the Motion Picture. See id. at 1234 (analyzing coauthorship under three factors: control, objective manifestation of intent to be coauthors, and whether the audience appeal of the work can be attributed to all coauthors). Because the coauthorship theory failed, the district court awarded summary judgment in favor of MGM, declining to reach any other issues. The Richlin heirs timely appeal.
II. JURISDICTION AND STANDARD OF REVIEW
The district court had jurisdiction pursuant to 28 U.S.C. § 1338, which confers subject matter jurisdiction over copyright actions. We have jurisdiction over final judgments of the district courts pursuant to 28 U.S.C. § 1291.
We review a district court's grant of summary judgment de novo. Bagdadi v. Nazar, 84 F.3d 1194, 1197 (9th Cir.1996). In reviewing the grant of summary judgment, we "must determine, viewing the
On appeal, the Richlin heirs maintain their contention that because Richlin and Edwards jointly authored the Treatment, and the Treatment became a critical component of the Motion Picture, Richlin was a co-author of the Motion Picture, and was therefore a co-owner on whose heirs' behalf MGM secured a renewal interest in the Motion Picture's copyright in 1991. Alternatively, the Richlin heirs resort to the theory underlying their complaint. They contend that publication of the Treatment with the Motion Picture secured a statutory copyright for the Treatment, which was renewed on their behalf by MGM when it renewed the Motion Picture's copyright. We address each argument in turn.
A. Coauthorship of the Motion Picture
To determine whether Richlin had an interest in the Motion Picture's federal statutory copyright, we must consider the question of coauthorship. The Richlin heirs argue that because Richlin coauthored the Treatment, which was a substantial component of the Motion Picture, he is also a coauthor of the Motion Picture. This coauthorship, according to the Richlin heirs, gives them an interest in the Motion Picture's copyright. Under this facially appealing, but legally unsustainable, argument, an interest in the renewal term of copyright and all subsequent motion pictures and adaptations based on that copyright would revert to the Richlin heirs.
We agree with the district court that Richlin and Edwards were not coauthors of the Motion Picture. Richlin and Edwards wrote the Treatment in 1962, and the Motion Picture was copyrighted when published with notice in 1963; therefore, the Richlin heirs' claim of coauthorship is governed by the 1909 Act. The 1909 Act, however, did not expressly mention or define joint works or coauthorship. Nevertheless, as early as 1915, in Maurel v. Smith, Judge Learned Hand applied the universally adopted common law definition of joint authors to the 1909 Act, holding that they "undertake jointly to write a play, agreeing on the general outline and design and sharing the labor of working it out." 220 F. 195, 199 (S.D.N.Y.1915) (quoting Levy v. Rutley, L.R. 6 C.P. 523 (1871)); see also Edward B. Marks Music Corp. v. Jerry Vogel Music Co., 140 F.2d 266, 267 (2d Cir.1944) ("[I]t is enough that they mean their contributions to be complementary in the sense that they are to be embodied in a single work to be performed as such."); LIOR ZEMER, THE IDEA OF AUTHORSHIP IN COPYRIGHT 190 n. 15 (2007) ("In Levy v. Rutley, the earliest recorded case on joint authorship, Byles[,] J[.] found joint authorship to exist although one person had contributed a very small amount of work to the execution."). Then, in Picture Music, Inc. v. Bourne, Inc., a district court suggested a "statutory revision[ ] of the copyright law [that] would define a `joint work' as one `prepared by two or more authors with the intention that their contributions be merged into inseparable or interdependent parts of a unitary whole.'" 314 F.Supp. 640,
Section 101 of the 1976 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. § 101 (1976). A "joint work" requires each author to make "an independently copyrightable contribution." Ashton-Tate Corp. v. Ross, 916 F.2d 516, 521 (9th Cir.1990). "The authors of a joint work are co-owners of copyright in the work." 17 U.S.C. § 201(a) (1976). Even if a person's contribution is minor, once he is accorded joint authorship status, he enjoys all benefits of joint authorship. See Erickson v. Trinity Theatre, Inc., 13 F.3d 1061, 1068 (7th Cir. 1994); Cmty. for Creative Non-Violence v. Reid, 846 F.2d 1485, 1498 (D.C.Cir.1988), aff'd on other grounds, 490 U.S. 730, 109 S.Ct. 2166, 104 L.Ed.2d 811 (1989); Bencich v. Hoffman, 84 F.Supp.2d 1053, 1055 (D.Ariz.2000); 1 NIMMER § 6.08.
In Aalmuhammed v. Lee, 202 F.3d 1227, 1234 (9th Cir.2000), we set forth three criteria for determining whether a work is jointly authored under § 101. First, we determine whether the "putative coauthors ma[de] objective manifestations of a shared intent to be coauthors." Id. A contract evidencing intent to be or not to be coauthors is dispositive. Id. Second, we determine whether the alleged author superintended the work by exercising control. Id. Control will often be the most important factor. Id. Third, we analyze 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. (quotations omitted).
The plain language of § 101 makes clear that Richlin is a coauthor of the Treatment. Viewing the facts in the light most favorable to the Richlin heirs, Richlin and Edwards could have secured statutory copyright for the Treatment before assigning it to Mirisch, as it was a fourteen-page original creative story written jointly by Richlin and Edwards. See 17 U.S.C. § 4 (1909) ("The works for which copyright may be secured under this title shall include all the writings of an author."); 17 U.S.C. § 102 (1976) ("Copyright protection subsists ... in original works of authorship fixed in any tangible medium of expression...."); 1 NIMMER §§ 2.04 and 6.01 (articulating standards for "literary works" and "joint works"). Moreover, the Treatment "was prepared by two or more authors," Richlin and Edwards, who clearly intended that it be "merged into inseparable or interdependent parts of a unitary whole." 17 U.S.C. § 101 (1976). Indeed, this is what Richlin and Edwards accomplished when they presented the completed Treatment to Mirisch.
But the Treatment is not the appropriate reference point. The Richlin heirs' claim for declaratory relief and an accounting rests on their argument that, by virtue of his contribution to the Treatment, Richlin is coauthor of the Motion Picture. Thus, the work that must be examined to determine joint authorship is the Motion Picture, not the Treatment. The plain
We must first determine whether "putative coauthors ma[de] objective manifestations of a shared intent to be coauthors." Aalmuhammed, 202 F.3d at 1234. A contract evidencing intent to be or not to be coauthors is dispositive. Id. In the absence of a contract, we look to other objective evidence of intent. Id. The district court found that the Assignment was contractual evidence of an objective manifestation that the parties did not intend to be coauthors. The district court reasoned that the Assignment conveyed forever "that certain story ... including any adaptations, treatments, scenarios, dialogue and/or screenplays." Professor Nimmer clarifies that "forever," when used in conjunction with conveyance of a copyrighted work (which the Treatment was not), "should be considered a shorthand for `the original and renewal term of copyright, plus any extensions, reversions, resurrections, or other circumstances that prolong the term.'" 3 NIMMER § 10.14[N]. Although the Treatment was not the subject of a federal statutory copyright, we agree with the district court that when Richlin and Edwards conveyed all present and future interests in the Treatment and derivative works to Mirisch, the parties to the contract could not consistently entertain the intent that Richlin and Edwards would be coauthors of the Motion Picture. Rather, Mirisch was given the right to exploit the Treatment in any way he chose. In any event, no language in the Assignment indicates any intent that Richlin and Edwards were to coauthor the Motion Picture.
In light of the Assignment, the Employment Agreement, and the surrounding circumstances, there were no "objective manifestations of a shared intent to be coauthors." Aalmuhammed, 202 F.3d at 1234. The Assignment conveyed to Mirisch all present and future rights in the Treatment and derivative works, including the common law "copyright." Neither the Assignment nor the Employment Agreement said anything about Richlin becoming a coauthor of the Motion Picture. None of The Pink Panther sequels lists Richlin as coauthor; rather, they simply give him screen credit as the creator of the original story and characters. Both the initial- and renewal-term statutory copyright registrations list Mirisch and its successors-in-interest as authors of the Motion Picture, not Richlin. Furthermore, the Employment Agreement specified that Richlin and Edwards were Mirisch's "employees," rendering the screenplay a "work made for hire," which is also inconsistent with the view that Richlin coauthored the Motion Picture.
The second factor — whether Richlin supervised the Motion Picture by exercising control — favors MGM as well. Richlin did not exercise any supervisory powers over the Motion Picture, a factor that Aalmuhammed indicates will often be the most important. Aalmuhammed, 202 F.3d at 1234. The Assignment granted to Mirisch "forever ... the absolute and unqualified right to use the [Treatment], in whole or in part, in whatever manner said purchaser may desire." Thus, while Richlin may have had control over the Treatment as originally written, he had no control over how the Treatment was incorporated into the Motion Picture. Moreover, although Richlin and Edwards cowrote the screenplay, the screenplay was a work made for hire pursuant to the Employment Agreement, making Mirisch the author/owner of the screenplay. 17 U.S.C. § 26 (1909); Warren, 328 F.3d at 1140. Any control that Richlin may have had over the screenplay does not lend support to his claim that he exercised any control over the creation of the Motion Picture.
We agree with the district court that the third factor, 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," favors the Richlin heirs, in light of the summary judgment standard. Aalmuhammed, 202 F.3d at 1234. As the district court noted, it is nearly impossible to determine how much of the Motion Picture's audience appeal and success can be attributed to the Treatment. Although the characters that Richlin helped to create formed the basis for the Motion Picture's success, perhaps it was Peter Sellers's legendary comedic performance, Henry Mancini's memorable score, or Blake Edwards's award-winning direction
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.
B. Significance of "Publication" of the Treatment
At the time the Treatment was incorporated into the Motion Picture,
Our analysis begins with an assessment of exactly what rights Richlin did and did not own when he assigned all rights in the Treatment to Mirisch on May 24, 1962. The original copyright in the Motion Picture is governed by the 1909 Act because the Treatment and the Motion Picture were created before January 1, 1978, when the Copyright Act of 1976 ("1976 Act") became effective. 17 U.S.C. § 304 (1976). The copyright was renewed in 1991, after the effective date of the 1976 Act. Thus, to analyze questions arising from events that occurred before January 1, 1978, such as who is the author of the Treatment, the 1909 Act applies; for events that occurred after that date, such as registration of the renewal copyright, the 1976 Act applies. See 1 NIMMER OV-7 ("In determining the corpus of law that governs a particular situation, the guiding principle should be to apply the law in effect when the infringement (or other activity), upon which suit is based, arises.").
Unlike the 1976 Act, the 1909 Act recognized a distinction between state (or common law) and federal copyright protection. Batjac, 160 F.3d at 1226. Unpublished works were protected by state common law or statute, while works published in accordance with the statutory formalities received federal statutory protection. Id. State common law protection — which afforded only rights of first publication and transferability of ownership — commenced when the work was created and ended when the work was published. See 1 NIMMER § 2.02. Once published, the work would obtain federal statutory protection, as long as it was published with proper notice. 17 U.S.C. §§ 10, 19 (1909). The duration of statutory copyright was twenty-eight years, with the option to renew for another twenty-eight years. Id. § 24.
Because the Treatment was not published at the time of the Assignment, Richlin's and Edwards's property interest in it is governed by California law at the time of transfer. Wheaton v. Peters, 33 U.S. 591, 658, 8 Pet. 591, 8 L.Ed. 1055 (1834) ("When ... a common law right is asserted, we must look to the state in which the controversy originated."). In California, "the basic principles governing `common law' copyright have been codified in Civil Code section 980 et seq." Zachary v. W. Publ'g Co., 75 Cal.App.3d 911, 918, 143 Cal.Rptr. 34 (1977). When Richlin and
California common law copyright provided for two key mechanisms to divest the copyright owner of his copyright — publication and transfer. Once the copyright owner published his work, it lost all common law copyright protection.
It is undisputed that the Treatment was unpublished and not the subject of federal statutory copyright protection when Richlin and Edwards transferred it to Mirisch. The transfer of that state common law right neither invested the Treatment with statutory copyright protection nor divested the work of its common law copyright protection. The significance of the transfer, however, is that Mirisch became the owner of the common law copyright in the Treatment. See id. In 1963, Mirisch published the Motion Picture with notice, thus securing federal statutory protection for the Motion Picture.
Acknowledging that the Treatment was unpublished until its copyrightable elements were published by virtue of the release and distribution of the Motion Picture in 1963 as components thereof, the Richlin heirs argue, in misplaced reliance upon our decision in Batjac, that the 1991 renewal of the Motion Picture effected a renewal of the unpublished Treatment's — now statutory — copyright. In Batjac, James Edward Grant wrote an original screenplay entitled "McLintock!" and almost immediately assigned all rights in the unpublished screenplay to Batjac, who incorporated the screenplay into the motion picture by the same name. Batjac, 160 F.3d at 1225. The motion picture was released to the general public and received federal statutory copyright protection in 1963. Id. Batjac failed to renew the copyright in the motion picture, which fell into the public domain in 1991. Id. After GoodTimes Home Video Corp. ("GoodTimes") began producing and selling videocassettes of the motion picture, Batjac sought copyright registration for two intermediate drafts of the screenplay, and then brought suit against GoodTimes for copyright infringement. Id. Batjac's suit was brought to a halt when the Copyright Office rejected Batjac's application to copyright the portions of the screenplay that were incorporated into the motion picture, on the ground that the motion picture — and all of its component parts — had fallen into the public domain. Id. On Batjac's challenge to this ruling, we deferred to the Copyright
Under Batjac, publication of the Motion Picture published those elements of the Treatment incorporated into the Motion Picture, see 17 U.S.C. § 3 (1909), and thus the Motion Picture's federal statutory copyright protection extended to those copyrightable elements of the Treatment that were published as components of the Motion Picture; however, this did not constitute publication of the Treatment "as such" — i.e., as a work standing alone. We have held that courts should generally defer to the Register of Copyright's ("Register") interpretation of the copyright statutes, as "`[t]he Register has the authority to interpret the copyright laws and ... its interpretations are entitled to judicial deference if reasonable.'" Batjac, 160 F.3d at 1230 (quoting Marascalco v. Fantasy, Inc., 953 F.2d 469, 473 (9th Cir.1991)). Accordingly, in Batjac we adopted the Register's view that publication of the screenplay, or here, the Treatment, did not publish the Treatment as an independent work, but just those portions incorporated into the published work. We deferred to the Register's reliance on the Compendium of Copyright Office Practices, which governed the Register's practices under the 1909 Act. The Compendium provides:
Batjac, 160 F.3d at 1230 (quoting Compendium I, COMPENDIUM OF COPYRIGHT OFFICE PRACTICES § 3.1.1 IV(a)). The Compendium makes clear that, by virtue of the publication of the Motion Picture, the Treatment "as such" did not become the subject of statutory copyright. Rather, only those elements of the Treatment that were incorporated into the Motion Picture were published, and they were statutorily protected as components of the Motion Picture, not as an independent "work." Thus, we reject the Richlin heirs' contention that publication of the Motion Picture with notice invested the Treatment with a statutory copyright.
Richlin died in 1990. Had the Treatment become the subject of statutory copyright as a separate and independent work, its renewal term would not commence until 1991. According to the Richlin heirs, because Richlin, like Woolrich, died before the right to renew the copyright vested, the right to renew the copyright in the Treatment reverted to them.
The BOA upheld the Copyright Office's rejection of the heirs' application for a renewal copyright interest in the screenplay, reasoning:
Id. at 4, 6 (citations omitted).
Even absent the principle of deference to the views of the Copyright Office, we would find the BOA's analysis persuasive. A motion picture is a work to which many contribute; however, those contributions ultimately merge to create a unitary whole. As one district court explained, "it is impossible to cleave the story, screenplay and musical score of a motion picture film from the film itself." Classic Film Museum, Inc. v. Warner Bros., Inc., 453 F.Supp. 852, 855-56 (D.Me.1978). Though publication of a motion picture with notice secures federal statutory copyright protection
The Richlin heirs turn to Selznick v. Turner Entertainment Co. to argue that when the original term of copyright in the Motion Picture was renewed, the statutory copyright in the Treatment was also renewed. The entire reading audience by now will know how to resolve this contention: There was no statutory copyright in the Treatment to renew; therefore, renewal of the Motion Picture's copyright did nothing to affect the Treatment's copyright status. In Selznick, the plaintiff and defendants were undisputed co-owners of a federal statutory copyright in the classic motion picture Gone With the Wind. The defendants filed a renewal copyright registration in their names only, and claimed that this renewal eradicated the plaintiff's interest in the copyright. Selznick, 990 F.Supp. at 1186. The district court rejected this argument, ruling that "[i]t is well-established that the co-owner claiming the renewal takes legal title to the renewal copyright as constructive trustee on behalf of the non-renewing co-owner." Id. (citing Pye v. Mitchell, 574 F.2d 476, 480 (9th Cir.1978)).
Therefore, the Richlin heirs' reliance on Selznick necessarily returns us to their flawed premise that Richlin coauthored the Motion Picture, and thereby became a co-owner of the Motion Picture's statutory copyright. Unlike in Selznick, however, Richlin was not a coauthor of the Motion Picture. Moreover, the Richlin heirs have wholly failed to demonstrate how the Motion Picture's incorporation of the Treatment invested in them an ownership interest in the Motion Picture's renewal copyright term. Although the Richlin heirs are correct that, under Batjac, publication of the Motion Picture also published those copyrightable elements of the Treatment incorporated into the Motion Picture, it is a nonsequitur to conclude that the Richlin heirs thereby gained a statutory copyright in the Treatment or the Motion Picture. As MGM points out, the only way on these facts for Richlin to be a co-owner of the copyright in the Motion Picture is if he had been a coauthor. Richlin, however, did not coauthor the Motion Picture. Therefore, Selznick's holding that a joint owner who renews a copyright acts as a constructive trustee for the other joint owners is inapposite.
In the end, the Richlin heirs ask us to consider one question: "For what reason should Richlin's heirs be treated any differently than the heirs of any other author?" The answer is clear: Richlin failed to secure federal statutory copyright protection for the Treatment. Therefore, the Treatment as such was never invested with statutory copyright, and a right to renew the original term of statutory copyright neither vested in Richlin nor reverted to his heirs. Because Richlin neither co-owned nor coauthored the Motion Picture,
For the foregoing reasons, we affirm the district court's decision.
Upon first inspection, this would appear to be a clue as to which parties or persons own the renewal interest in the Motion Picture. However, such monies paid are but one more lead into a dead end. In February 1965, Richlin, Edwards, and the Writers Guild of America entered into a settlement agreement with Mirisch resolving a dispute regarding A Shot in the Dark and the applicability of sequel payments. The check paid to Louise Richlin in 1992 was issued pursuant to this settlement agreement, which is a contractual matter unrelated to the question of ownership of the renewal copyright interest in the Motion Picture.