The Copyright Society of the USA’s New York chapter held a lunch event titled “Copyright and Collaborative Works” at the Princeton Club in Manhattan. The Copyright Society holds events throughout the year, often focusing on new developments in copyright law.
The lunch was well attended. It was announced that over 100 people signed up for the event. From what I could tell, I was the only current law student in attendance. The majority of the attendees seemed to be active practitioners in copyright and intellectual property law, which makes these events great networking opportunities for anyone interested in practicing copyright law. Although it was a bit intimidating for me (not a natural networker!) the staff of the Copyright Society asked if I knew anyone else attending and pointed out someone to me who had already arrived and was a recent NYU law graduate. I found this incredibly helpful and it made circulating prior to the event starting much easier.
This particular event was designed to address the implications of recent developments in copyright law. A panel was convened to discuss how the recent decisions in Garcia v. Google, Inc., 743 F.3d 1258 (9th Cir. 2015) and 16 Casa Duse, LLC v. Merkin, 791 F.3d 247 (2d Cir. 2015) would impact collaboration. The panelists were Patrick W. Guy, an attorney currently in private practice who has over 30 years of experience working in-house representing television programmers; Jedd Wider, a partner in a hedge fund who has 16 years experience producing documentary films; and Stan Richardson, a playwright. The panel was moderated by David Leichtman, a partner in the trial practice office of Robins Kaplan LLP whose work includes patent, copyright, trademark and trade secret cases.
The discussion of the cases was brief and the presentation was not designed as an in-depth investigation of the cases themselves (which is quite different from the typical law school class discussion of court cases). Rather the presentation of the cases assumed that the attendees were aware of and had previously read the cases. The event was aimed more at teasing out how these cases would impact events in the world of creative collaboration and whether the assumptions made by the courts was borne out in the actually practice of collaboration. Stan Richardson, the playwright, spent a good amount of time actually discussing how he as a playwright and theater company founder interacts with his actors throughout the creative process, and the implications of his more experimental forms of theater, which have included combining theater with film and television.
The panel also tackled what was needed (in an ideal situation) in the contract provisions between collaborators on a creative work to make sure that the copyrights vested or were protected in the proper party (meaning that party that expects to have them and contracts to have them). There was some discussion over whether in the wake of 16 Casa Duse LLC v. Merkin a “dominant author” clause would be necessary in these contracts. Such a clause would be in response to the Second Circuit fashioning a “dominant author” test to determine who owns the copyright to a work or elements of the work (in 16 Casa Duse LLC it was a film and the ownership of copyright of the finished work along with ownership of the raw footage was at issue) when contracts are absent. Factors the court discussed included decision making authority, billing, and written agreements with third parties.
I enjoyed the event (the people were nice and the food was very good), but I think this particular discussion was better suited not to a law student very new to the world of copyright but rather to practitioners who had substantive concerns about how their clients may need to adapt their practices in the face of these new decision by the Second and Ninth Circuits. It was helpful, though, to have the perspectives of people who actually deal with the issues of working with collaborators on creative projects. They were able to describe the often-messy process of collaboration and development of creative works. It was a welcome reminder to me that while the law seems clear and attorneys may have a good idea of ideal practices to protect their clients, those clients may not always be able to implement those practices, at least not in the ideal manner initially envisioned. For instance, Patrick Guy revealed that during his time at CBS, licensing agreements were often never signed, even on marquee shows like Murder She Wrote and M.A.S.H.
Janie Buckley is a J.D. candidate, ’17, at the NYU School of Law.