This is an appeal from a judgment of the United States District Court for the Southern District of New York (Richard J. Sullivan, Judge) granting summary judgment to the plaintiff on its copyright and state-law claims, dismissing the defendant’s copyright counterclaims, and awarding the plaintiff costs and attorney’s fees. Because we agree with the district court that the plaintiff owns the copyright to all versions of the work in question, a film entitled Heads Up, and that copyright does not subsist in individual contributions to that film, we conclude that the district court properly granted summary judgment to the plaintiff on its copyright claims and did not abuse its discretion in enjoining the defendant from interfering with the plaintiffs use of the film. We also conclude, however, that the defendant, not the plaintiff, was entitled to summary judgment on the plaintiffs claim for tortious interference with business relations under New York law. We therefore affirm in part, reverse in part, and remand the case to the district court with instructions for it to
BACKGROUND
Appellee 16 Casa Duse, LLC, (“Casa Duse”) is a film-production company based in Brooklyn, New York. The company is owned and operated by Robert Krakovski. Appellant Alex Merkin is a film director, producer, and editor. Appellant Maurice Reichman is an attorney who represented Merkin in some of his dealings with Casa Duse.
In September 2010, Krakovski, acting at all relevant times as the principal of Casa Duse, purchased the rights to a screenplay entitled Heads Up from the work’s author, Ben Carlin. Krakovski, who planned to finance and produce a short film based on the screenplay, asked Merkin whether he would be willing to direct the film. Mer-kin agreed, and the two settled informally on a fee of $1,500 for Merkin’s services.
In the ensuing months, Krakovski 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. Although Merkin recommended that Krakovski employ some persons as crew members, Krakovski made the ultimate hiring decisions. In the meantime, Kra-kovski, Merkin, and others involved with the project planned various aspects of the production, including props, locations, and scheduling.
Each cast and crew member other than Merkin entered into an “Independent Contractor [] Agreement” with Casa Duse. The agreements contained statements that Casa Duse would “engage the services [of the cast or crew member] as ‘work for hire’ of an independent contractor,” J.A. 485, and set out terms for compensation, performance standards, and other matters. The work-for-hire agreements also stated that Casa Duse 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....” J. A. 487.
In February 2011, Krakovski sent Merkin 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. It provided, inter alia, that Casa Duse would own all rights in the film. Merkin acknowledged his receipt of the draft by email, noting that he would ask his lawyer to review it.
Some two-and-a-half months later, on May 9, 2011, Krakovski sent Merkin an email reminding him to execute the agreement, Merkin did not respond.
Krakovski contacted Merkin again on May 16, a week before production was scheduled to start, reminding him again of the importance of completing the agreement before work on the film began. Merkin again failed to reply. On May 18, Krakovski e-mailed again asking for a completed agreement, to no avail.
Despite the lack of a completed agreement, production began later that month. During production, which included three days of filming, Merkin 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. Merkin completed his direction of the film by the end of May.
In June 2011, Krakovski gave Merkin a hard drive containing the raw film footage
On June 16, Krakovski sent an e-mail to Merkin proposing' changes to the Media Agreement in order to “clarify,” first, that Casa Duse and not Merkin owned the footage and hard drive, and, second, that Casa Duse’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. J.A. 580. Merkin replied, saying that the proposed changes seemed acceptable but also “clarifying],” for his part, 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 16 Casa Duse, LLC.” J.A. 581. Krakovski responded, asserting that he had never intended the film to be “a ‘Joint Venture’ ” and instead had intended to obtain Merkin’s services pursuant to a work-for-hire agreement. J.A. 521.
From July to October 2011, Krakovski and Merkin continued to negotiate the terms of the Media Agreement and a work-for-hire agreement. The parties communicated directly — via e-mail — and through their attorneys. From time to time, they appeared to reach agreement on some key terms, including Casa Duse’s ownership of the film, Merkin’s authority to make a “director’s cut,” and Merkin’s ability to remove his name from the final product if he so desired, but negotiations ultimately collapsed. Krakovski demanded the return of the hard drive containing the raw film footage. Merkin refused and warned Krakovski that, without an agreement in place, Casa Duse could not, in his view, release the film.
In November 2011, Merkin sent Krakovski a letter “putting [Krakovski] on notice that [Merkin] forb[ade] any use whatsoever of the raw footage.” J.A. 400. The letter conceded that Krakovski owned the screenplay but insisted that Merkin owned the “raw footage.” Id. In December 2011, Krakovski responded through counsel, who, by e-mail, proposed that Casa Duse pay Merkin 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, Merkin would agree to deem his directorial services a “work for hire” for Casa Duse. The e-mail also advised that Casa Duse had, by then, retained a different editor. Merkin responded and reiterated his position that Casa Duse was “not permitted to use [his] work in any edit without [his] involvement.” J.A. 403. Merkin threatened to contact film festivals to inform them that Casa Duse lacked rights to the film in the event Krakovski did not assent. Krakovski’s attorney responded by sending an e-mail to Merkin’s attorney, disputing Merkin’s position and warning that any interference with screening of the film would potentially subject Merkin to liability.
In January 2012, as the dispute continued to simmer, Merkin registered a copyright in the film with the United States Copyright Office. The title of the registration was “Raw footage for film ‘Heads Up’ Disks 1-4,” reflecting the fact that Merkin had copied the footage from the hard drive onto four DVDs. J.A. 71. The registration listed the type of work as “Motion Picture” and asserted that Merkin was its sole author. Merkin did not obtain Casa Duse’s permission to register the
In March 2012, Krakovski began submitting Heads Up to film festivals and making plans to publicize the film. To that end, he scheduled an invitation-only screening for approximately seventy persons at the New York Film Academy (“NYFA”) on April 18, 2012. Krakovski also organized a reception to follow at a nearby restaurant, City Crab, for which he paid a non-refundable deposit of $1,956.58.
On the date of the event, the NYFA chairperson contacted Krakovski to tell him that Merkin’s attorney (Reichman) had threatened the NYFA with a cease- and-desist order to prevent the screening from proceeding. According to Reichman, it was Merkin — not Reichman — who contacted the NYFA and mentioned a cease and desist “notice,” not an order, at which point the NYFA contacted Reichman. In any event, the NYFA cancelled the screening in response to these threats, and Casa Duse lost its restaurant deposit. Casa Duse subsequently missed at least four film festival submission deadlines as a result of the dispute. Merkin did not return the hard drive, the DVDs, or the raw footage in any form.
Casa Duse brought suit against Merkin and his limited liability company, A. Mer-kin Entertainment, LLC, (“AME”) in May 2012 seeking, inter alia, a temporary restraining order and injunction enjoining Merkin from interfering with its use of the film. The district court granted the temporary restraining order and issued an order to show cause why a preliminary injunction should not issue. After briefing, on May 18, 2012, the court issued the' preliminary injunction that Casa Duse sought.
Some two months later, in July 2012, Casa Duse filed an amended complaint requesting a judgment declaring that (1) Casa Duse was not liable to Merkin or AME for copyright infringement; (2) Neither Merkin nor AME owned a copyright interest in the film; and (3) Merkin’s copyright registration was invalid. Casa Duse also asserted claims for breach of contract, tortious interference with business relations, and conversion. It sought relief in the form of compensatory damages; an order requiring Merkin to withdraw his copyright registration, return all forms of the footage, and refrain from interfering with Casa Duse’s use of the film; and costs and attorney’s fees as a sanction under 28 U.S.C. § 1927 and pursuant to the Copyright Act’s fees provision, U.S.C. § 505.
The defendants filed an Amended Answer and counterclaims in August 2012, requesting a judgment declaring that (1) “A Motion Picture Director Is An Author,” (2) “17 U.S.C. Has No Provision Of, Or For, A ‘Merged Work,’ ” (3) “There Can Be No Work For Hire Or Assignment Without An Express Writing,” (4) Mer-kin’s copyright registration was valid, (5) attorney’s fees pursuant to 17 U.S.C. § 505 were unavailable in the absence of a copyright infringement claim, and (6) it was “improper” for Casa Duse’s complaint to include a request for sanctions pursuant to 28 U.S.C. § 1927. J.A. 318-23. Merkin also asserted a claim for breach of contract based on Casa Duse’s failure to pay him for his services.
Casa Duse moved for summary judgment on its claims and its requests for fees and sanctions. Merkin cross-moved for summary judgment on all of his claims and most of Casa Duse’s claims, including its claim for tortious interference with business relations. Merkin also requested that the court vacate the preliminary injunction and strike the fees and sanctions request. AME moved to dismiss the complaint as to AME in its entirety.
Merkin and Reichman appealed.
DISCUSSION
This case requires us to answer a question of first impression in this Circuit: May a contributor to a creative work whose contributions are inseparable from, and integrated into, the work maintain a copyright interest in his or her contributions alone? We conclude that, at least on the facts of the present case, he or she may not.
I. Standard of Review
“We review a district court’s grant of summary judgment de novo.” Blanch v. Koons,
‘We review the District Court’s entry of a permanent injunction for abuse of discretion, which may be found where the Court, in issuing the injunction, relied on clearly erroneous findings of fact or an error of law.” Knox v. Salinas,
We review a district court’s award of costs and attorney’s fees under 17 U.S.C. § 505 and its imposition of sanctions under 28 U.S.C. § 1927 for abuse of discretion. See Medforms, Inc. v. Healthcare Mgmt. Solutions, Inc.,
II. Jurisdiction
We must determine, as a threshold matter, whether we have the authority to hear the merits of this case on appeal. We generally lack jurisdiction, under 28 U.S.C. § 1291,
In the case before us, the district court entered judgment after dismissing Mer-kin’s breach of contract claim without prejudice at the parties’ request. The court’s judgment would thus ordinarily be nonfi-nal, depriving us of jurisdiction over the merits.
At argument before us, however, Merkin agreed to a dismissal of his remaining claim, for breach of contract, with prejudice. “A party who loses on a dispos-itive issue that affects only a portion of his claims may elect to abandon the unaffected claims, invite a final judgment, and thereby secure review of the adverse ruling.” Atlanta Shipping Corp. v. Chemical Bank,
III. Copyright Claims
Merkin argues that the district court erred in concluding, first, that Merkin could not copyright his creative contributions to the film, and, second, that he lacks copyright ownership of the “raw film footage.” Casa Duse responds that individual contributions to a film, such as direction, are not themselves subject to copyright protection and that Casa Duse retains sole copyright ownership of the film and the “raw footage,” to the extent the two are distinguishable for copyright purposes.
Two points merit mention at the outset.
First, the parties agree that Merkin is not a “joint author” or “co-author” of the film under the 1976 Copyright Act. See 17 U.S.C. § 101 (“A ‘joint work’ is a work prepared by two or more authors with the intention that their contributions be merged into inseparable or interdependent parts of a unitary whole.”). If he were, that fact would likely prohibit his interference with Casa Duse’s use and display of. the film, because “[o]ne joint owner cannot be liable for copyright infringement to another joint owner.” 1 Melville B. Nimmer & David Nimmer, Nimmer on Copyright § 6.10[A] (2015). A co-authorship claimant in our Circuit generally must show that “each of the putative co-authors (1) made independently copyrightable contributions to the work; and (2) fully intended to be co-authors.” Thomson v. Larson,
Second, the parties also agree that Mer-kin’s efforts cannot be deemed a “work made for hire.” See 17 U.S.C. § 201(b) (“[T]he ... person for whom the work[for-hire] was prepared is considered the author ... and, unless the parties have expressly agreed otherwise in a written instrument signed by them, owns all of the rights comprised in the copyright”). A work-for-hire arrangement requires:
(1) a work prepared by an employee within the scope of his or her employment; or (2) a work specially ordered or commissioned for use as a contribution to a collective work, as a part of a motion picture^ or for other specified purposes] ... if the parties expressly agree in a written instrument signed by them that the work shall be considered a work made for hire.
Id. § 101. Merkin was not Casa Duse’s employee, see Cmty. for Creative Non-Violence v. Reid,
A Copyright in Creative Contributions to a Work
“Copyright protection subsists ... in original works of authorship fixed in any tangible medium of expression, now known or later developed, from which they can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device.” 17 U.S.C. § 102(a). We have never decided whether an individual’s non-de minimis creative contributions to a work in which copyright protection subsists, such as a film, fall within the subject matter of copyright, when the contributions are inseparable from the work and the individual is neither the sole nor a joint author of the work and is not a party to a work-for-hire arrangement. See Thomson,
The Copyright Act does not define the term “works of authorship.” Section 102 of the Act, however, lists examples of categories of “works of authorship,” including “literary works,” 17 U.S.C. § 102(a)(1), “musical works,” id. § 102(a)(2), and— most relevant here — “motion pictures and other audiovisual works,” id. § 102(a)(6). This list is not exhaustive, but as we have previously observed, categories of creative efforts that are not “similar [ ]or analogous to any of the listed categories” are unlikely to fall within the subject matter of federal copyright protection. Nat’l Basketball Ass’n v. Motorola, Inc.,
Other provisions of the Act support this conclusion. The Act’s definition of “joint work,” a work prepared by multiple authors “with the intention that their contributions be merged into inseparable or interdependent parts of a unitary whole,” 17 U.S.C. § 101 (emphasis added), suggests that such inseparable contributions are not themselves “works of authorship.” Copyright may subsist in contributions to a collective work, see id. § 201(c) (“Copyright in each separate contribution to a collective work is distinct from copyright in the collective work as a whole.”), but only when such contributions constitute “separate and independent” works. Id. § 101 (“A ‘collective work’ is a work, such as a periodical issue, anthology, or encyclopedia, in which a number of contributions, constituting separate and independent works in themselves, are assembled into a collective whole.” (emphasis added)). The requirement that contributions be “separate and independent” in order to obtain their own copyright protection also indicates that inseparable contributions integrated into a single work cannot separately obtain such protection.
The legislative history of the Copyright Act further supports this reading. According to the House Report on the 1976 Act:
[A] motion picture would normally be a joint rather than a collective work with respect to those authors who actually work on the film, although their usual status as employees for hire would keep the question of coownership from coming up. On the other hand, although a novelist, playwright, or songwriter may write a work with the hope or expectation that it will be used in a motion picture, this is clearly a case of separate or independent authorship rather than one where the basic intention behind the writing of the work was for motion picture use.
H.R.Rep. No. 94-1476, at 120 (1976), reprinted in 1976 U.S.C.C.A.N. 5659, 5736. While issues of “coownership” of a copyright may arise in the motion picture context, the question of separate contributions meriting separate copyrights as “works” ordinarily would not, unless the motion picture incorporates separate, freestanding pieces that independently constitute “works of authorship.” In a joint work, “the separate elements [comprising the work] merge into a unified whole,” whereas in a collective work, individuals’ contributions “remain unintegrated and disparate.” Id., H.R.Rep. No. 94-1476, at 122, 1976 U.S.C.C.A.N., at 5738.
As Casa Duse observes, the Copyright Office has, in an unrelated case, suggested a similar interpretation of the Act. The Office has stated that an individual who lacks a work-for-hire agreement but who “intend[s] her contribution or performance to ‘be merged into inseparable or interdependent parts of a unitary whole[,]’ 17
There was, until recently, some authority apparently to the contrary. The majority of a three-judge panel of the Ninth Circuit concluded that copyright protection may subsist in an actor’s performance in a motion picture. See Garcia v. Google, Inc.,
An en banc panel reversed, however, adhering to the Copyright Office’s view and, based thereon, concluding that the actor’s “theory of copyright law would result in [a] legal morass[,] ... [making] Swiss cheese of copyrights.” Garcia (en banc),
Our conclusion in the present case does not suggest that motion picture directors such as Merkin may never achieve copyright protection for their creative efforts. The director of a film may, of course, be the sole or joint author of that film, such that she or he can secure copyright protection for the work. See Cmty. for Creative Non-Violence,
A final observation: A conclusion other than the one we adopt would grant contributors like Merkin greater rights than joint authors, who, as we have noted, have no right to interfere with a co-author’s use of the copyrighted work. See Childress,
We conclude that Merkin did not obtain and does not possess a copyright in his directorial contributions to the finished film.
B. Copyright in Raw Film Footage
Merkin also contends that he and not Casa Duse owns all copyright interests in the “raw film footage” which was contained on the hard drive and DVDs and from which the final film Heads Up was or will be produced.
Unlike Merkin’s creative contributions to the film, the film footage is subject to copyright protection. An original motion picture is surely a “work of authorship” in which copyright protection “subsists” under the Copyright Act. See 17 U.S.C. § 102(a)(6). And “where a work is prepared over a period of time, the portion of it that has been fixed at any particular time constitutes the work as of that time.” Id. § 101. The unedited’ film footage at issue in this case seems to us to be an early version of the finished product, constituting the film “as of that time.” Because “the Copyright Act [] affords protection to each work at the moment of its creation,” Weissmann v. Freeman,
The district court concluded, and we agree, that Casa Duse was that “dominant author.” See 16 Casa Duse,
As to decisionmaking authority, which refers to the parties’ relative control “over' what changes are made and what is included in a work,” id. at 202, the parties agree that Merkin exercised a significant degree of control over many of the creative decisions underlying both the raw film footage and the finished product. As director, Merkin made a variety of creative decisions related to camera work, lighting, blocking, and actors’ wardrobe, makeup, and dialogue delivery, particularly during the three days of filming. But in the context of the project as a whole, Casa Duse exercised far more decisionmaking authority. Cf. id. at 198 n. 10 (putative coauthor’s claim to have “developed [a play’s] plot and theme, contributed extensively to the story, created many character elements, [and written] a significant portion of the dialogue and song lyrics” did not render her a joint, let alone dominant, author of play). Casa Duse initiated the project; acquired the rights to the screenplay; selected the cast, crew and director; controlled the production schedule; and coordinated (or attempted to coordinate) the film’s publicity and release. Cf. Aal-muhammed v. Lee,
The second factor is “the way in which the parties bill or credit themselves,” which provides evidence of intent of authorship. Thomson,
The third factor, “the parties’ agreements with outsiders,” Thomson,
We agree with the district court that in this case, Casa Duse was the dominant author of the film. The record does not reflect any developments that occurred between the creation of the raw film footage and Casa Duse’s attempts to create a finished product that would alter this analysis as to the raw footage. We thus conclude that Casa Duse, not Merkin, owns the copyright in the finished film and its prior versions, including the disputed “raw film footage.”
IV. Tortious Interference with Business Relations
Merkin does not challenge the district court’s grant of summary judgment to Casa Duse on two of its three state law claims.
To prevail on a claim for tortious interference with business relations — also known as tortious interference with prospective economic advantage, see Catskill Dev., L.L.C. v. Park Place Entm’t Corp.,
Merkin does not contest that to the extent Casa Duse had business relationships with the NYFA and City Crab Restaurant, his actions interfered with those relationships in a way that injured Casa Duse. It is undisputed that Merkin’s claimed copyright interest, whether communicated by Merkin or Reichman, resulted in the cancellation of the screening and the recep
As to the first, Merkin argues that Casa Duse has failed to demonstrate the “business relations” component of its claim because “a one night rental is not a business relationship.” Appellant’s Br. at 36. Mer-kin cites no authority for this proposition. New York courts have placed some limits on what constitutes “business relations” by rejecting, for example, a claim containing “only a general allegation of interference with customers without any sufficiently particular allegation of interference with a specific contract or business relationship,” McGill v. Parker,
As to the third element, Merkin argues that Casa Duse has failed to show that he “acted for a wrongful purpose or used dishonest, unfair, or improper means.” Catskill Dev.,
Merkin’s interaction with the NYFA director was not criminal, and Casa Duse does not argue that his conduct was independently tortious. Nor does Casa Duse allege that Merkin acted for the sole purpose of harming the company. Casa Duse instead urges us to find that Merkin’s insistent assertion of his copyright interest in the film constituted wrongful means, because he demonstrated a “willfulf ] blind[ness] to the factual and legal realities of [his] position.” 16 Casa Duse,
New York courts have left open the possibility that a defendant who has .“harass[ed]” a plaintiff with “meritless litigation” may have utilized “wrongful means.” See Carvel Corp.,
V. Fees and Sanctions
Merkin and Reichman argue that the district court made legal errors in awarding fees and costs to Casa Duse under the Copyright Act, 17 U.S.C. § 505, and imposing sanctions against Reichman in the form of fees and costs under 28 U.S.C. § 1927. We disagree.
The district court did not err in granting Casa Duse’s motion for attorney’s fees even though the motion was filed prior to the entry of judgment. A motion for attorney’s fees must “be filed no later than 14 days after the entry of judgment.” Fed.R.Civ.P. 54(d)(2)(B)(i) (emphasis added). “ ‘Prompt filing ... enables the court in appropriate circumstances to make its ruling on a fee request in time for any appellate review of a dispute over fees to proceed at the same time as review on the merits of the case.’ ” Weyant v. Okst,
Nor did the court err in concluding that the Copyright Act allows a party that has not registered a copyright to recover costs and fees under specified circumstances. Under the Act, a court may, in its discretion, “allow the recovery of full costs by or against any party other than the United States or an officer thereof’ in “any civil action under [the Copyright Act]” and “award a reasonable attorney’s fee to the prevailing party as part of the costs.” 17 U.S.C. § 505. Another section of the Act, entitled “Registration as prerequisite to certain remedies for infringement,” limits recovery in infringement actions, barring recovery for infringement that occurred prior to registration:
In any action under this title, [with exceptions not relevant here], no award of statutory damages or of attorney’s fees, as provided by ... [section] 505, shall be made for (1) any infringement of copyright in an unpublished work commenced before the effective date of its registration; or (2) any infringement of copyright commenced after first publication of the work and before the effective date of its registration, unless such registration is made within three months after the first publication of the work.
17 U.S.C. § 412. Merkin argues that this section of the law prohibits Casa Duse, which did not register a copyright in the film, from collecting fees and costs. But Casa Duse has not brought an “infringement action.” It seeks instead a declaratory judgment that it has not infringed on Merkin’s putative copyright. “[T]here is nothing in the statute that prohibits fee awards in cases, like this one, of non infringement.” Latin Am. Music Co. v. Am. Soc’y Of Composers, Authors & Publishers (ASCAP),
Reichman also argues that the district court erred by finding him jointly and severally liable with Merkin for costs and fees, because the Copyright Act allows for the imposition of costs and fees only against a “party,” not against a party’s attorney. 17 U.S.C. § 505. But the court awarded costs and fees to Casa Duse under both the Copyright Act and 28 U.S.C. § 1927. The latter statute allows a court to require an attorney to “satisfy personally” costs and fees. 28 U.S.C. § 1927. The district court’s allocation of costs and fees was not contrary to law.
Merkin and Reichman finally argue that even if fees and costs were available under these statutes, the district court abused its discretion in awarding them to Casa Duse under 17 U.S.C. § 505 and 28 U.S.C. § 1927. As to the former, a district court determining whether to exercise its discretion to award fees under the Copyright Act “may consider such factors as (1) the frivolousness of the non-prevailing party’s claims or defenses; (2) the party’s motivation; (3) whether the claims or defenses were objectively unreasonable; and (4) compensation and deterrence.” Bryant v. Media Right Prods., Inc.,
Merkin and Reichman argue that their copyright theory was not “objectively unreasonable,” see Bryant,
CONCLUSION
For the foregoing reasons, we AFFIRM the district court’s grant of summary judgment to Casa Duse on its copyright claims and thus the court’s entry of a permanent injunction against Merkin, REVERSE the district court’s grant of summary judgment to Casa Duse on its tortious interference with business relations claim, and REMAND to the district court with instructions to enter summary judgment in
Notes
. Casa Duse does not challenge this dismissal.
. Section 1291 provides in pertinent part: "The courts of appeals ... shall have jurisdiction of appeals from all final decisions of the district courts of the United States...."
. It seems likely that "[b]y 'copyrightable' [the Childress court] meant only to say that the coauthor's contribution must be the product of authorship, i.e., expression. [The court] did not mean that in order to be a coauthor one must be able to obtain a copyright on his or her separate contribution,” 2 Patry on
. We noted in Thomson that "the test of co-authorship intent will vary depending on the specific factual circumstances." Thomson,
. We thus need not reach Casa Duse's alternative contention, which the district court did not address, that even if Merkin maintained some copyright interest in his contributions, he granted Casa Duse an implied license to use those contributions. See Graham v. James,
We note, however, that while one commentator has suggested that ''[t]he correct approach to resolving the situation where an individual ... contributes expression to a work but is found not to be a joint author is to find an implied license," 2 Patry on Copyright § 5:17, there are at least some circumstances in which the implied license approach may not permanently resolve the dispute. "[U]nder federal and state law a material breach of a licensing agreement gives rise to - a right of rescission which allows the nonbreaching party to terminate the agreement.” Rano v. Sipa Press, Inc.,
. For this reason, we do not share the concern of the dissenting judge in Garcia {en banc) that "[i]f Garcia's scene is not a work,
. The parties agree, for example, that they are not joint authors. See 17 U.S.C. § 201(a).
. The district court concluded that Casa Duse’s claims for breach of contract and conversion, both of which related to Casa Duse's request that Merkin return the hard drive containing the raw film footage, were properly analyzed as a single claim for replevin under New York law. 16 Casa Duse,