Co-Authorship Claim Denied

April 28, 2000


Michael I. Rudell

Court Denies Claim of Co-Authorship of Movie

(Originally published in the Entertainment Law column in the New York Law Journal, April 28, 2000.)

In a case that discusses who, in the absence of a contract, can be considered an author of a movie, a Federal Appeals Court has rejected the claim of Jefri Aalmuhammed that the movie “Malcolm X” was a “joint work.”1 In so doing, the Court upheld the grant by the district court of summary judgment dismissing plaintiff’s claim for a declaratory judgment and an accounting resting on co-authorship.

In 1991, Warner Brothers entered into an agreement with Spike Lee and his production companies to make the movie “Malcolm X” based on the book “The Autobiography of Malcolm X.” Lee co-wrote the screenplay, and directed and co-produced the movie. Aalmuhammed, who is particularly knowledgeable about the life of Malcolm X, having previously written, directed and produced a documentary film about him, was asked by the star of the film, Denzel Washington, to assist him in his preparation for the role. The movie was filmed in the New York metropolitan area and Egypt. Aalmuhammed joined Washington on the set and was extensively involved in making the movie. In addition to his other activities, he reviewed the shooting script and suggested extensive revisions, some of which were included in the final version of the film. Most of the revisions were to insure the religious and historical accuracy and authenticity of scenes depicting the religious conversion of Malcolm X and his pilgrimage to Mecca.

Aalmuhammed submitted evidence that he created at least two entire scenes with new characters, translated Arabic into English for subtitles, selected the proper prayers and religious practices for the characters and edited parts of the movie during post-production. In his deposition, Washington testified that Aalmuhammed made a great contribution to the movie because he helped to re-write and make it more authentic.

Although Aalmuhammed never had a written contract with Warner Brothers, Lee or any of Lee’s production companies, he did expect compensation for his work and did not intend to bear his expenses in New York and Egypt gratuitously. Lee ultimately gave Aalmuhammed a check for $25,000 which he cashed; Washington gave him a check for $100,000 which he did not.

Prior to the release of the film, Aalmuhammed requested that he be given credit as co-writer, but was refused. In the version of the film that was released, Aalmuhammed received credit as an “Islamic Technical Consultant,” well down in the list of credits.

In November 1995, Aalmuhammed applied for copyright with the Copyright Office, claiming that he was a co-creator, co-writer and co-director of the movie. The Copyright Office issued a certificate of registration, but advised him that his claims conflict with previous registration of the film.

Shortly thereafter, Aalmuhammed filed a complaint against Lee, his production companies, Warner Brothers and others. He sought declaratory relief and an accounting under the Copyright Act. In addition, he alleged breach of implied contract, quantum merit, unjust enrichment and federal and state unfair competition claims.

The Court first addresses defendants’ assertion that plaintiff’s claim is barred by the applicable statute of limitations. Under section 507(b) of the Copyright Act, a claim of authorship of a joint work must be brought within three years of when it accrues. The claim is deemed to accrue on account of creation, not subsequent infringement, and is barred three years from plain and express repudiation of authorship.

The movie credits plainly and expressly constituted a repudiation of authorship by listing Aalmuhammed as an “Islamic Technical Consultant” far below the more prominent names. That repudiation was less than three years before the lawsuit was filed. The Court notes that the record leaves open a genuine issue of fact as to whether authorship was repudiated before that, because defendants argue that a discussion between Aalmuhammed and an executive producer at Warner Brothers more than three years before suit was filed constitutes an express repudiation that bars the claim. Aalmuhammed testified that the producer told him in that conversation “there is nothing I can do for you” but said that he would discuss it further at some point. Because a trier of fact could construe that communication as leaving the question of authorship open for further discussion, there is a genuine issue of fact as to whether the claim is barred by the statute of limitations. Accordingly, the Court must turn to an analysis of whether there is a genuine issue of fact as to Aalmuhammed’s being an author of a joint work.

Although the Copyright Act does not define “author” it does define “joint work” in Section 101 as follows:

“A joint work is 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.”

Thus, the statutory language establishes that to be a joint work there must be (i) a copyrightable work, (ii) two or more authors and (iii) the authors’ intention that their contributions be merged into inseparable or interdependent parts of a unitary whole.

It is undisputed that Aalmuhammed made substantial and valuable contributions to the movie. Several of them, such as speaking Arabic to persons in charge of the Mosque, do not result in a copyrightable contribution to the motion picture. However, Aalmuhammed has submitted evidence that he re-wrote several specific passages of dialogue that appeared in the film and that he wrote scenes that were enacted in the movie. If this evidence is accepted, as it must be on summary judgment, these works would have been independently copyrightable and, therefore, Aalmuhammed has presented a genuine issue of fact as to whether he made a copyrightable contribution. Further, all persons involved intended that their contributions would be merged into interdependent parts of the movie as a unitary whole.

However, as noted above, a joint work includes two or more “authors.” The Court holds that authorship is required under the statutory definition of a joint work, and that authorship is not the same thing as making a valuable and copyrightable contribution. The question here presented is whether Aalmuhammed, acknowledged to be a contributor, is also an author of the joint work within the meaning of the Copyright Act.

In its discussion of who is an author, the Court notes that it is relatively easy to apply that word to a novel, but, as the number of contributors to a project grows and the work itself becomes less the product of one or two individuals who created it, the definition is harder to ascertain.

In the absence of a contract, who can be considered the author of a movie? In discussing this question, the Court refers to Chaucer, Eisenstein and Grenier before turning to relevant opinions of the Supreme Court. In one case involving the question of authorship of a photograph, the Supreme Court decided that the photographer was the author (as opposed to the person who makes the lithograph from it). In another case, answering a different question — what is a copyrightable work as opposed to who is the author — the Supreme Court held that some minimal level of creativity or originality suffices. Such a measurement of a “work” would be too broad and indeterminate to be useful in ascertaining who are the authors of the movie. Given the collaborative nature of a film, everyone from the producer and director to casting director and hair stylist receive listing in the movie credits because all of their creative contributions matter. The Court indicates that making a creative contribution does not suffice to establish authorship of a movie.

The cases referred to above answer two distinct questions: who is the author and what is a copyrightable work.” The author is defined as the person to whom the work owes its origin and who superintended the whole work, the “master mind.” In a film, in the absence of a contract to the contrary, this generally would limit authorship to someone “at the top of the screen credits, sometimes the producer, sometimes the director, possibly the star, or the screenwriter — someone who has artistic control.”

The Court cites Thomson v. Larson2 (previously the subject of two articles in this column), which dealt with the claim of a “dramaturg” who worked with the creator of “Rent.” There it was concluded that the contribution of independently copyrightable material to a work intended to be an inseparable whole would not suffice to establish authorship of a joint work. Although the Thomson decision was not based on an interpretation of the word “authors” in the statute, the practical results reached in that case are consistent with those in the instant one.

The decision cites Thomson to hold that in determining whether the parties have the intent to be joint authors, the Court will look at who has decision making authority, how the parties bill themselves and other evidence. In Thomson, the dramaturg had no decision-making authority and had neither sought nor was billed as co-author. The defendant entered into contracts as the sole author. On this reasoning, the Court held that there was no intent to be joint authors by the putative parties and, therefore, “Rent” was not a joint work.

In view of the cases referred to above, the Court notes that three factors suggest themselves as being among the criteria for joint authorship in the absence of a contract. In the first, the author “superintends” the work by exercising control. In the second, putative co-authors make objective manifestations of a shared intent to be co-authors. In the third, the audience appeal of the work turns on both contributions and the share of each in its success cannot be appraised. Applying these factors to the present case, the decision indicates that Warner Brothers and Spike Lee, rather than Aalmuhammed, had superintends of the work. Like the dramaturg in the Thomson case, he could make extremely helpful recommendations, but Spike Lee was not bound to accept any of them. Absence of control over the work is strong evidence of absence of co-authorship. Also, neither Aalmuhammed, Spike Lee nor Warner Brothers made any objective manifestations of an intent to be co-authors. Spike Lee had signed a “work-for-hire” agreement with Warner Brothers and it would be illogical to conclude that Warner Brothers, not wanting to permit Lee to own the copyright, intended to share ownership with Aalmuhammed, who worked under Lee’s control. No one, including Aalmuhammed, made any indication to anyone prior to litigation that Aalmuhammed was intended to be a co-author and co-owner.

The Court notes that the broad construction of authorship that Aalmuhammed proposes would extent the concept to many “overreaching contributors” like the dramaturg in Thomson and deny sole authors “exclusive authorship status simply because another person render[ed] some form of assistance.”

Aalmuhammed also argues that the issuance to him of a copyright registration certificate established a prima facie case for ownership. A prima facie case could not in any event prevent summary judgment when there is present significant evidence rebutting his claim of ownership. The Copyright Office stated in its response to the application for copyright that Aalmuhammed’s claims “conflict with previous registration claims” and that it had several questions for him. One of the questions dealt with the intent of the other authors. The Court indicates that the evidence discussed above establishes that the answer to these questions is that Warner Brothers did not intend to share ownership with Aalmuhammed.

Because the record before the district court established no genuine issue of fact as to Aalmuhammed’s co-authorship of Malcolm X as a joint work, the Court holds that the district court correctly granted summary judgment dismissing his claims for declaratory judgment and accounting resting on co-authorship.

Plaintiff’s claims based on unjust enrichment, quantum meruit and implied contract were dismissed by the district court, which held that the California two-year statute of limitations applied. The Court, holding that New York’s six-year statute applied, vacates the dismissal and remands the claims for further proceedings.

The district court also had dismissed plaintiff’s unfair competition claims on the ground that the complaint failed to state a sufficient cause of action. Holding that the arguments raised by defendants go to evidentiary matters, rather than the sufficiency of the complaint, the Court reverses that dismissal.


1 Aalmuhammed v. Lee, U.S. Ninth Circuit Court of Appeals, 9955224 (Feb 4, 2000).

2 NYLJ Volume 218, No 62, Sept. 26, 1997, and NYLJ Volume 220, No. 17, July 24, 1998.