Plaintiff Flynn, a film producer, and defendants agreed to make a documentary film together focusing on the animal rights group PETA that would be critical of the group. Plaintiff Berman, a PR executive with clients who opposed the animal rights group, agreed to invest in the movie in exchange for exclusive rights to promote the film. During production, the parties disagreed about the content of the film, and defendant eventually barred plaintiff producer from being involved in the film. The final version of the film was mostly favorable coverage of a different animal rights group.
Plaintiffs filed an action seeking a declaration that plaintiff producer was a joint author of the film and damages for breach of contract and fraud. A jury verdict included an award to Berman of $360,000 in damages on the breach of contract claim, and the jury answered interrogatories by finding that plaintiff producer and defendant intended to be joint authors and that plaintiff’s contributions to the film were independently copyrightable.
After the verdict, defendants objected to instructions given to the jury on joint authorship. The district court had applied the 2nd and 7th Circuit test for joint authorship, which requires a plaintiff to show that each of the putative co-authors (1) made independent copyrightable contributions to the work, and (2) fully intended to be co-authors. Defendants argued that the court should have applied the 9th Circuit test for joint authorship, which requires that a joint author (1) make an independently copyrightable contribution and (2) establish authorship by demonstrating (a) control over creation of the work, (b) a shared intent to be co-authors, and (c) audience appeal based on each contributor’s contribution. (Aalmuhammed v. Lee, 202 F.3d 1227, 1232 (9th Cir. 2000)). While noting the circuit split, the court held that defendants had the opportunity to object to the jury instructions and failed to object, and that, even if defendants had objected, the court would have applied the 2nd and 7th Circuit test because it was the better rule and because the 9th Circuit test is “susceptible to inequitable manipulation” (e.g., a person could wrongfully prevent a co-author from exercising control, as happened in this case) and therefore flawed.
Also after the verdict, plaintiff Berman sought a declaration that he was sole promoter of the film. The court rejected the requested relief on two grounds. Most importantly, the court held that a party cannot be awarded damages for a breach of contract and specific performance of the contract because that would be double recovery. In this case, the court said granting Berman’s request for a declaration that he had the exclusive rights to promote the film would constitute specific performance of the contract. Additionally, the court found Berman’s request flawed because he sought relief he never requested in the complaint.