When creating new media works, such as films, television shows, and other entertainment productions, in addition to the “who is the owner of the work” question – which includes issues of joint authorship – a separate question that often arises is – what is the obligation to identify someone who contributed to the work with a specific title, such as producer, associate producer, executive producer, and so on?
In FOCAL POINT FILMS, LLC, v. ARJOT SANDHU, 2019 WL 7020209 (N.D. California. 12/20/2019) this issue was resolved in favor of a film documentarian in a dispute with a person who made some contributions to a film, and who claimed the right to be listed as a “producer” of the film.
The plaintiff, Focal Point, had the idea for and had been working on a documentary film about Betty Reid Soskin, “a 94-year old African American woman who entered the public spotlight when she became the oldest National Park Ranger serving in the United States.” The owner of Focal Point met the defendant Ms. Sandhu at a film workshop, and she asked to work on the documentary film project. She did work “as an extra camera operator during a handful of shoots, always under Gibel’s supervision and with the understanding that Sandhu would be compensated on partially deferred basis.” Focal Point offered Ms. Sandhu “associate producer” credit on the film, however after exchanging numerous drafts of agreements, over several years, the parties could not agree in writing. Allegedly Ms. Sandhu “snuck unauthorized co-director and co-editor credits for herself into a “pitch deck” for the film” – even after her services were terminated, and her assertion of title or co-ownership over the film was preventing Focal Point from obtaining financing to finish the film. Focal Point sued for a declaratory judgment that it was the sole owner of the Film.
The issue for the court was whether Ms. Sandhu owned any part of the film, and whether she was required to be listed as a Producer.
There is no universally accepted definition of “Producer” – it is an industry term of art that refers to “the person responsible for finding and launching a project; arranging financing financing; hiring writers, a director, and key members of the creative team; and overseeing all elements of pre-production, production and post-production, right up to release.” See https://www.masterclass.com/articles/what-does-a-hollywood-producer-do-responsibilities-of-a-film-producer-and-how-to-become-a-producer#what-is-a-producer. Or, in words of the Producers Guild of America “A Producer initiates, coordinates, supervises and controls, either on his/her own authority, or subject to the authority of an employer, all aspects of the motion-picture and/or television production process, including creative, financial, technological and administrative. A Producer is involved throughout all phases of production from inception to completion, including coordination, supervision and control of all other talents and crafts, subject to the provisions of their collective bargaining agreements and personal service contracts.” https://www.producersguild.org/page/faq
The legal issue
Looking at the issue of Producer credit, the court noted that under Dastar Corp. v. Twentieth Century Fox Film Corp., 539 U.S. 23 (2003) a person who claims ownership in a copyrighted work does not have a claim for false designation of origin (or any other unfair deceptive trade practice claim, in most cases) because “the phrase “origin of goods” “refers to the producer of the tangible goods that are offered for sale, and not to the author of any idea, concept or communication embodied in those goods.”” Id. at 37. The court also cited Sybersound Records, Inc. v. UAV Corp., 517 F.3d 1137, 1143 (9th Cir. 2008) in which the court rejected plaintiff’s claim that a karaoke company misrepresented it had proper synchronization licenses from the plaintiff – noting that “Construing the Lanham Act to cover misrepresentations about copyright licensing status as Sybersound urges would allow competitors engaged in the distribution of copyrightable materials to litigate the underlying copyright infringement”
The court, relying on the above cases, but also many others including Friedman v. Zimmer, No. 15 Civ. 502, 2015 WL 6164787 (C.D. Cal. July 10, 2015) (which held that a musician who claimed his work was included in a movie that represented only the music of Hans Zimmer was included, did not have a claim for failure to attribute him and his music in the credits) – found that Dastar and Sybersound barred Ms. Sandhu’s claims, including her claims that her reputation was being injured by failure to credit her role in the Film. The court also rejected similar state law claims.
Why a written agreement is important
If not obvious from the above case, it is important for film makers – really, any creators that will collaborate with others, to have an agreement *before* that collaboration commences. In this case the parties made significant efforts to put their agreement in writing, but the fact that they could not agree should have been a red flag to the documentarian that troubled waters were ahead. In these cases it is almost always best to terminate the relationship and find another collaborator who will sign a fair written agreement. At least this case helps to resolve one issue that comes up in those cases where a written agreement is not present – the collaborator will probably not have Lanham Act type claims for “credit” that would survive Dastar and its progeny, even under state law. That leaves just the issue of co-ownership – which in this case was not at issue on the motion.