It Doesn’t Have To Be the Magna Carta! Alien Yogurt And The Writing Requirement For Copyright Transfers

StuffSunday (June 15) marks the 799th birthday of the Magna Carta (sometimes spelled Magna Charta), which famously limited the powers of the English monarch vis-à-vis his feudal barons.  Although often credited as a singular influence on the U.S. Constitution, and therefore on American law, it also gave rise to one of our favorite pre-internet copyright memes, courtesy of Ninth Circuit Judge Alex Kozinksi in Effects Associates v. Cohen.

The Stuff

In 1984, Hollywood director Larry Cohen was filming The Stuff, a low-budget horror movie about the invasion of earth by aliens who look and taste just like yogurt.  Cohen called Effects Associates and asked them to produce certain special effects footage to incorporate into the film, including the explosion of a yogurt factory. Effects Associates delivered the footage, but Cohen was unhappy with it and only paid half of the promised amount. Per industry practice, there was never a written contract between the parties.

In 1985, Cohen released the film, which included the Effects Associates footage. Effects Associates brought suit for copyright infringement. A District Court eventually granted summary judgment for Cohen, and the case came before the Ninth Circuit in 1990.

It Doesn’t Have To Be the Magna Carta! 

It was pretty clear that the footage was not a work for hire, so Cohen tried to convince the Court that Effects Associates had transferred ownership of the footage to him. However, Section 204 of the Copyright Act clearly required that such a transfer be in writing, and no writing existed.

So Cohen tried to get around Section 204’s writing requirement by arguing that it simply didn’t apply to him. Cohen reasoned that artistic people like him were “too absorbed in developing joint creative endeavors to focus upon the legal niceties copyright licenses.”  Instead, Cohen argued, the Court should hold that ownership of the footage was impliedly transferred to him by Hollywood custom. In other words, Section 204 was fine for everyone else, but Cohen and his ilk were too busy to be unduly burdened by the Copyright Act. Perhaps exasperated by this pretentious argument, Judge Kozinski wrote:

Section 204’s writing requirement is not unduly burdensome; it necessitates neither protracted negotiations nor substantial expense.  The rule is really quite simple: If the copyright holder agrees to transfer ownership to another party, that party must get the copyright holder to sign a piece of paper saying so. It doesn’t have to be the Magna Charta; a one-line pro forma statement will do.

Ultimately, the Court rejected Cohen’s transfer argument but nevertheless affirmed summary judgment on the grounds that Cohen had an implied license, which doesn’t have to be in writing. This meant that Effects Associates didn’t have a copyright claim against Cohen, but could still sue Cohen in state court for breach of contract. It also meant that Effects Associates, as owner of the footage, could license or sell it to others.  However, as Judge Kozinski noted, “it remains to be seen whether there’s a market for shots featuring great gobs of alien yogurt oozing out of a defunct factory.”

Judge Kozinksi’s “Magna Charta” reference, albeit dicta, nevertheless went sort of viral.  It has since been cited and quoted by nearly fifty published opinions in ten circuits and three state courts.  Of course, Judge Kozinski garnered even greater attention more recently for his opinion in Garcia v. Google, in which he held that an actress had an independent copyright in her own unfixed performance in a film.  Fortunately for both Mr. Cohen and Effects Associates, the alien yogurt never retained counsel to press that issue.

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