On June 29, 2015, in 16 Casa Duse v. Merkin, LLC, the US Court of Appeals for the Second Circuit held that a director's contribution to an integrated work of authorship, in this case a film, is not itself a work of authorship entitled to its own copyright protection (No. 13-3865, (2d Cir. June 29, 2015)). The court also held that the copyright in an unfinished work, such as raw film footage, belongs to its dominant author.

Robert Krakovski, the principal of 16 Casa Duse, LLC, engaged Alex Merkin to direct a short film for $1500. Krakovski also hired a cast, crew and production assistants, all of whom signed work-for-hire agreements, except Merkin. After Merkin directed the film, Casa Duse sent him raw video footage to edit, however Merkin still refused to sign a work-for-hire agreement. Eventually, Casa Duse retained a new editor and asked Merkin to return the raw footage. Merkin refused and asserted rights to the film. When Casa Duse later attempted to screen the film at various film festivals, Merkin told the festivals that Casa Duse did not have rights to the film and they cancelled the screenings.

Casa Duse sued Merkin in the US District Court for the Southern District of New York, obtaining a preliminary injunction enjoining Merkin from interfering with Casa Duse's use of the film. Granting summary judgment, the district court found that Merkin:

Merkin appealed.

On appeal, the Second Circuit explained that the parties agreed that:

Therefore, the court had to determine whether Merkin's creative contribution to the film was a separate, copyrightable "work of authorship." The court noted that it was an issue of first impression whether an individual's creative contributions to a work in which copyright protection subsists, such as a film, fall within the subject matter of copyright, when:

The Second Circuit explained that, while the Copyright Act does not define works of authorship, it does provide examples, including motion pictures and other audiovisual works. None of the examples are non-freestanding contributions to otherwise copyrightable works of authorship. Other parts of the Copyright Act, such as its definitions of a joint work and its legislative history, further support the position that a contribution by itself is not entitled to a separate copyright. Therefore, the Second Circuit held that a director's contribution to an integrated work of authorship, such as a film, is not a work of authorship subject to its own copyright protection. The court noted that its interpretation agreed with a recent en banc decision of the US Court of Appeals for the Ninth Circuit (for more on the Ninth Circuit's decision, see Legal Update, Unwitting Actress in "Innocence of Muslims" Film Entitled to Copyright Preliminary Injunction Against YouTube: Ninth Circuit).

The Second Circuit also held that Casa Duse, not Merkin, held the copyright in the raw video footage. The court explained that a copyright may subsist in an unfinished work, but where multiple individuals lay claim to the copyright in that work and none of the multiple-author scenarios in the Copyright Act applies, the dispositive inquiry is which author is the dominant one. The court identified factual indicia of ownership and authorship that can be used to determine the dominant author, including:

The court found that overall, these factors favored Casa Duse as the dominant author and entitled it to copyright ownership of the raw film footage.

The Second Circuit therefore affirmed the district court's grant of summary judgment to Casa Duse on its copyright claims, though it reversed and remanded the district court's decision on Casa Duse's state-law claims.