16 Casa Duse, LLC v. Merkin

791 F.3d 247 (2nd Cir. 2015)

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Nature of the Case

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Facts

P is a film-production company owned and operated by Robert Krakovski. D is a film director, producer, and editor. Maurice Reichman is an attorney who represented D in some of his dealings with P. P purchased the rights to a screenplay entitled Heads Up. P planned to finance and produce a short film based on the screenplay and asked D whether he would be willing to direct the film. D agreed, and the two settled informally on a fee of $1,500 for D's services. P assembled a cast and crew for the film, also entitled Heads Up. He hired additional producers, a script supervisor, a photography director, camera operators, various designers and technicians, and actors, creating an ensemble of about thirty members. P made the ultimate hiring decisions. In the meantime, P, D, and others involved with the project planned various aspects of the production, including props, locations, and scheduling. Each cast and crew member other than D entered into an 'Independent Contractor Agreement' with P. P would 'engage the services [of the cast or crew member] as 'work for hire' of an independent contractor.' The work-for-hire agreements stated that P would retain 'complete control' of the film's production and 'own all of the results and proceeds of [the cast and crew's] services in connection with the [film] . . . including, but not limited to, all rights throughout the world of . . . copyright . . . .' P sent D a draft work-for-hire agreement entitled 'Director Employment Agreement.' Its terms were similar to those in the agreements signed by other cast and crew. P would own all rights in the film. D acknowledged receipt noting that he would ask his lawyer to review it. Two-and-a-half months later, P sent D an e-mail reminding him to execute the agreement. P contacted D, a week before production was scheduled to start, reminding him again of the importance of completing the agreement before work on the film began. D again failed to reply. A few days later P e-mailed again asking for a completed agreement. Production began later that month. There were three days of filming, D performed his role as director by advising and instructing the film's cast and crew on matters ranging from camera angles and lighting to wardrobe and makeup to the actors ' dialogue and movement. D completed his work on the film by the end of May. In June 2011, P gave D a hard drive containing the raw film footage so D would be able to edit the footage. P and D entered into a 'Media Agreement' under which D would edit but not license, sell, or copy the footage for any purpose without the permission of P. On June 16, P sent an e-mail proposing changes to the Media Agreement in order to 'clarify,' first, that P and not D owned the footage and hard drive, and, second, that P's entry into the Media Agreement had not relinquished 'any directorial/editorial terms [or] rights' that would be finally allocated by a work-for-hire agreement. D replied in that the changes seemed acceptable but also 'that he was 'not giving up any creative or artistic rights' he had in the project and 'all of [his] creative work . . . is still [his] work and not the property of P.' P asserted that he had never intended the film to be 'a 'Joint Venture'' and instead had intended to obtain D's services pursuant to a work-for-hire agreement. From July to October 2011, negotiations continued but ultimately collapsed. P demanded the return of the hard drive containing the raw film footage. D refused and warned P that, without an agreement in place, P could not, in his view, release the film. In November 2011, D sent a letter 'putting P on notice that D forbade any use whatsoever of the raw footage.' D conceded that P owned the screenplay but that D owned the 'raw footage.' D conceded that P owned the screenplay but that D owned the 'raw footage.' Id. In December 2011, P proposed to pay D the agreed-upon $1,500 for his directorial services, allow him to complete his desired 'director's cut,' and ensure his opportunity to remove his name from the finished product if he wished. In exchange, D would agree to deem his directorial services a 'work for hire' for P. The e-mail also advised that P had retained a different editor. D responded that P was 'not permitted to use [his] work in any edit without [his] involvement.' D threatened to contact film festivals to inform them that P lacked rights to the film. P's attorney responded by sending an e-mail to D's attorney, disputing D's position and warning that any interference would subject D to liability. In January 2012, D registered a copyright in the film. The registration asserted that D was its sole author. P was unaware of the registration. In March 2012, P began submitting Heads Up to film festivals and making plans to publicize the film. P scheduled an invitation-only screening for approximately seventy persons at the New York Film Academy (NYFA). P organized a reception to follow at a nearby restaurant, for which he paid a non-refundable deposit of $1,956.58. On the date of the event, the NYFA chairperson contacted P to tell him that D's attorney (Reichman) had threatened the NYFA with a cease-and-desist order to prevent the screening from proceeding. According to Reichman, it was D-not Reichman-who contacted the NYFA and mentioned a cease and desist 'notice,' not an order, at which point the NYFA contacted Reichman. The NYFA canceled the screening in response to these threats, and D lost its restaurant deposit. D missed at least four film festival submission deadlines. D did not return the hard drive, the DVDs, or the raw footage in any form. P sued. D. The court issued a preliminary injunction in P's favor. P sued. D. The court issued a preliminary injunction in P's favor. D filed a counterclaim. P moved for summary judgment. D cross-moved for summary judgment. The court granted summary judgment to P on all claims. The court awarded P (1) $1,956.58 in damages and (2) $185,579.65 in attorney's fees and costs, of which D and Reichman would be jointly and severally liable for $175,634 and Reichman would be solely liable for the remaining $9,945.65. D and Reichman appealed.