FOR PUBLICATION
`UNITED STATES COURT OF APPEALS
`FOR THE NINTH CIRCUIT
`
`
`
`BRADLEY RICHLIN; LANCE RICHLIN;
`MARK MANNIS; ABIGAIL RICHLIN
`SCHWARTZ,
`
`Plaintiffs-Appellants,
`LOUISE RICHLIN; ELYSSA PARTON;
`MICHELLE FORKEL,
`Nominal Defendants and
`Involuntary Plaintiffs-Appellants,
`v.
`METRO-GOLDWYN-MAYER PICTURES,
`INC.; GEOFFREY PRODUCTIONS, INC.,
`Defendants-Appellees.
`
`No. 06-55307
`D.C. No.
`CV-04-09162-DDP
`OPINION
`
`Appeal from the United States District Court
`for the Central District of California
`Dean D. Pregerson, District Judge, Presiding
`
`Argued and Submitted
`October 15, 2007—Pasadena, California
`
`Filed June 19, 2008
`
`Before: Ferdinand F. Fernandez and Kim McLane Wardlaw,
`Circuit Judges, and Raner C. Collins,* District Judge.
`
`Opinion by Judge Wardlaw
`
`
`
`*The Honorable Raner C. Collins, United States District Judge for the
`District of Arizona, sitting by designation.
`
`7229
`
`(cid:252)
`(cid:253)
`(cid:254)
`

`
`RICHLIN v. METRO-GOLDWYN-MAYER
`COUNSEL
`
`7233
`
`E. Randol Schoenberg, Laura A. Gibbons, Burris & Schoen-
`berg, LLP, Los Angeles, California; Thomas A. Brackey,
`Freund & Brackey LLP, Beverly Hills, California, for the
`plaintiffs-appellants, and nominal defendants and involuntary
`plaintiffs-appellants.
`
`Jonathan Zavin, Jacques M. Rimokh, Loeb & Loeb LLP, New
`York, New York; David Grossman, Loeb & Loeb LLP, Los
`Angeles, California, for the defendants-appellees.
`
`OPINION
`
`WARDLAW, Circuit Judge:
`
`Inspector Jacques Clouseau, famously unable to crack the
`simplest of murder cases, would most certainly be con-
`founded by the case we face. While Inspector Clouseau
`searched for the answer to the question, “Who did it?”, we
`must search for the answer to the question, “Who owns it?”
`In 1962, Maurice Richlin coauthored a story treatment (the
`“Treatment”)1 involving the bumbling inspector. Later that
`year, before publication,2 Richlin assigned all rights in the
`
`1According to expert witness Dr. Drew Casper of the University of
`Southern California’s School of Cinema-TV, a treatment is a “brief out-
`line, in prose, describing the actions of a movie plot, indicating characters
`along the way with little or no dialogue; it will run no more than 25 pages,
`it is the last stage before beginning a screenplay proper and as such, func-
`tions as a source for a script.” The Treatment is a fourteen-page mixture
`of story and staging. For example, the Treatment reads: “Festival that
`night. Table with Princess, George, Sir Charles, Simone and the Inspector.
`Checking on car—facts about Le Pouf—Princess sees Secretary and
`excuses herself. Simone and George dance. George suggests a later ren-
`dezvous. He will find a way to get rid of her husband.”
`2“Publication” is a term of art in the law of copyright. Publication
`before the effective date of the current Copyright Act divested an author
`
`

`
`7234
`
`RICHLIN v. METRO-GOLDWYN-MAYER
`
`Treatment—including copyright and the right to renew that
`copyright—to a corporation that used it to create the smash-
`hit film, The Pink Panther (the “Motion Picture”). The
`Richlin heirs now claim federal statutory renewal rights in the
`Treatment and derivative works, including the Motion Pic-
`ture. They assert that Richlin’s coauthorship of the Treatment
`makes him a coauthor of the Motion Picture. Alternatively,
`they contend that, because the Motion Picture secured statu-
`tory protection for the portions of the Treatment incorporated
`into the Motion Picture, and because the copyright in the
`Motion Picture was renewed for a second term, they are co-
`owners of the Motion Picture’s renewal copyright and all
`derivative works thereof. Although the Richlin heirs have
`developed several theories that could supply the answer to the
`question, “Who owns it?”, unlike Inspector Clouseau, they
`have not quite stumbled upon a theory that favors them. We
`therefore affirm the district court’s conclusion that the Richlin
`heirs have no interest in the copyright to the Motion Picture.
`
`I. BACKGROUND
`
`The material facts are largely undisputed. In April 1962,
`Maurice Richlin and Blake Edwards coauthored a fourteen-
`page Treatment initially entitled The Pink Rajah, but later
`renamed The Pink Panther. The Treatment served as the basis
`
`of his common law copyright rights and injected the work into the public
`domain free for anyone to use. Publication in accordance with the statu-
`tory formalities of the 1909 Act, 17 U.S.C. § 10 (1909), however, both
`divested the owner of his common law copyright and invested him with
`federal statutory copyright protection. The rationale for this doctrine is
`rooted in the United States Constitution, which provides that “[t]he Con-
`gress shall have power . . . . [t]o promote the progress of science and use-
`ful arts, by securing, for limited times to authors and inventors, the
`exclusive right to their respective writings and discoveries.” U.S. CONST.
`art. I, § 8, cl. 8. In exchange for securing the exclusive right to exploit his
`work that federal copyright accords, the author agrees that he will enjoy
`this monopoly for the limited duration Congress granted in the Copyright
`Acts, so that the public is the ultimate beneficiary. See generally 1 M.
`NIMMER & D. NIMMER, NIMMER ON COPYRIGHT §§ 4.01, 4.03 (2007).
`
`

`
`RICHLIN v. METRO-GOLDWYN-MAYER
`
`7235
`
`for the well-known motion picture, The Pink Panther, and
`numerous derivative works. It appears that the Treatment set
`forth many of the plot elements and characters, including
`Inspector Clouseau himself, developed into the screenplay
`and incorporated into the Motion Picture.
`
`Richlin and Edwards entered into an employment agree-
`ment dated May 14, 1962 (the “Employment Agreement”)
`with the Mirisch Corporation of Delaware (“Mirisch”) to
`write the screenplay for the Motion Picture.3 They agreed to
`create the screenplay as a “work made for hire.” Under this
`contract, Richlin and Edwards combined received $150,000
`for their work on the Treatment and the screenplay.4
`
`Later that month, on May 24, 1962, Richlin and Edwards
`executed a literary assignment agreement (the “Assignment”)
`whereby they transferred and assigned “forever . . . that cer-
`tain story (which term shall cover all literary material written
`by [Richlin and Edwards] in connection therewith including
`any adaptations, treatments, scenarios, dialogue, scripts and/or
`screenplays) entitled: ‘Pink Rajah’ also entitled or known as
`‘Pink Panther’ ” in exchange for $1 “and other good and valu-
`able consideration in hand” paid by Mirisch. Mirisch also
`received “the right to use [Richlin’s and Edwards’s] name[s]
`as the author of the literary composition upon which said
`adaptations, or any of them, are based.” The Assignment fur-
`ther provided that if Mirisch copyrighted the Treatment,
`Mirisch “shall enjoy its rights hereunder for the full duration
`of such copyright or copyrights, including any and all renew-
`als thereof.”5
`
`3The Richlin heirs contend that the Employment Agreement was exe-
`cuted on June 12, 1962. The precise date of the contract’s execution does
`not affect our holding.
`4A letter dated June 28, 1962, confirmed that “the $150,000 payment for
`property [the Treatment] and screenplay is divided $50,000 for property
`and $100,000 for screenplay.”
`5Although Richlin assigned to Mirisch all rights in the unpublished
`Treatment, an assignment of a statutory renewal copyright, assuming the
`
`

`
`7236
`
`RICHLIN v. METRO-GOLDWYN-MAYER
`
`In 1963, The Pink Panther was released and distributed in
`theaters to great acclaim. It was followed by nine movie sequels,6
`many of which gave screen credit to Richlin and Edwards for
`creating the characters. The original Motion Picture bears a
`copyright notice of 1963 in the name of Mirisch and G&E
`Productions. In 1964, the U.S. Copyright Office issued a cer-
`tificate of registration for the “motion picture” entitled “The
`Pink Panther” under the Copyright Act of 1909 (“1909 Act”).
`
`The Certificate of Registration identifies the claimant and
`author as “Mirisch-G&E Productions.” The certificate lists the
`date of publication as March 18, 1964, but notes that the
`copyright notice on the Motion Picture bears a date of 1963.
`The Richlin heirs concede that neither the Treatment nor the
`screenplay was ever separately published or registered for
`federal copyright protection.
`
`Richlin died on November 13, 1990. The original term of
`copyright in the Motion Picture—twenty-eight years from the
`first date of publication—was set to expire in 1991,7 but it was
`
`Treatment became the subject of statutory copyright, would not become
`effective unless the author/assignor lives to the commencement of the
`renewal term, which is when the renewal interest vests in the author. See
`Stewart v. Abend, 495 U.S. 207, 220 (1990) (“[I]f the author dies before
`the commencement of the renewal period, the assignee holds nothing.”
`(citing Miller Music Corp. v. Charles N. Daniels, Inc., 362 U.S. 373, 377
`(1960) (“Section 24 [of the 1909 Act] reflects, it seems to us, a consistent
`policy to treat renewal rights as expectancies until the renewal period
`arrives.”))). The Richlin heirs’ claim is based on Richlin’s predeceasing
`the vesting of the renewal interest provided by statutory copyright.
`6A Shot in the Dark (1964); Inspector Clouseau (1968); The Return of
`the Pink Panther (1975); The Pink Panther Strikes Again (1976); Revenge
`of the Pink Panther (1978); Trail of the Pink Panther (1982); Curse of the
`Pink Panther (1983); Son of the Pink Panther (1993); and The Pink Pan-
`ther (2006).
`7Under the 1909 Act, as amended, federal copyright protection was
`secured “by publication thereof with the notice of copyright required by
`[§ 19] of this title.” 17 U.S.C. § 10 (1909). There is no dispute that the
`Motion Picture was released and distributed with proper notice in 1963,
`
`

`
`RICHLIN v. METRO-GOLDWYN-MAYER
`
`7237
`
`renewed that year by the successors-in-interest to Mirisch-
`G&E Productions, MGM-Pathe Communications Co./
`Geoffrey Productions Inc. (collectively, “MGM”). A Renewal
`Certificate issued, which identified MGM as the claimant and
`“proprietor of copyright in a work made for hire” and the
`author and original claimant as Mirisch-G&E Productions.
`None of the Richlin heirs attempted to secure a renewal inter-
`est in the Treatment or screenplay, and there is no separate
`renewal certificate for either.
`
`The Richlin heirs filed suit in the United States District
`Court for the Central District of California seeking declara-
`tory relief and an accounting. They claim a 50 percent
`renewal interest in the Treatment and all derivative works.
`During the course of this litigation, the theories undergirding
`this claim have evolved. The complaint relies on the theory
`that publication of the derivative work (the Motion Picture)
`effectuated publication of the underlying work (the Treat-
`ment). Under this theory, when MGM renewed the Motion
`Picture’s statutory copyright in 1991, this renewed the copy-
`right in the Treatment on behalf of the Richlin heirs, which
`gave the Richlin heirs an interest in the Motion Picture’s
`renewal copyright. These principles carry some theoretical
`weight in copyright law; however, the Richlin heirs failed to
`renew their statutory copyright, if any, in the Treatment in
`1991. That may explain why, by the time the district court
`granted summary judgment in favor of MGM, the Richlin
`heirs had abandoned their argument based on a statutory
`copyright in the Treatment. Instead, they argued that they
`have a copyright interest in the Motion Picture as coauthors
`based on Richlin’s coauthorship of the Treatment, which was
`
`although it was not registered with the U.S. Copyright Office until 1964.
`Because “the copyright secured by [the 1909 Act] . . . endure[d] for
`twenty-eight years from the date of first publication,” 1991 was the year
`the original term would expire. See id. § 24. The Renewal Registration
`identifies its effective date as February 13, 1991.
`
`

`
`7238
`
`RICHLIN v. METRO-GOLDWYN-MAYER
`
`incorporated into the Motion Picture. The district court ana-
`lyzed the requirements of a “joint work” prepared by coau-
`thors, who under copyright law would each be deemed an
`owner of the copyright. The court rejected this theory
`because, under the factors set forth in Aalmuhammed v. Lee,
`202 F.3d 1227, 1234 (9th Cir. 2000), Richlin had no control
`over the Motion Picture, and there was no manifestation of
`intent—by contract or otherwise—that Richlin and Edwards
`would be coauthors of the Motion Picture. See id. at 1234
`(analyzing coauthorship under three factors: control, objective
`manifestation of intent to be coauthors, and whether the audi-
`ence appeal of the work can be attributed to all coauthors).
`Because the coauthorship theory failed, the district court
`awarded summary judgment in favor of MGM, declining to
`reach any other issues. The Richlin heirs timely appeal.
`
`II. JURISDICTION AND STANDARD OF REVIEW
`
`The district court had jurisdiction pursuant to 28 U.S.C.
`§ 1338, which confers subject matter jurisdiction over copy-
`right actions. We have jurisdiction over final judgments of the
`district courts pursuant to 28 U.S.C. § 1291.
`
`We review a district court’s grant of summary judgment de
`novo. Bagdadi v. Nazar, 84 F.3d 1194, 1197 (9th Cir. 1996).
`In reviewing the grant of summary judgment, we “must deter-
`mine, viewing the evidence in the light most favorable to the
`nonmoving party, whether genuine issues of material fact
`exist and whether the district court correctly applied the rele-
`vant substantive law.” Id.
`
`III. DISCUSSION
`
`On appeal, the Richlin heirs maintain their contention that
`because Richlin and Edwards jointly authored the Treatment,
`and the Treatment became a critical component of the Motion
`Picture, Richlin was a coauthor of the Motion Picture, and
`was therefore a co-owner on whose heirs’ behalf MGM
`
`

`
`RICHLIN v. METRO-GOLDWYN-MAYER
`
`7239
`
`secured a renewal interest in the Motion Picture’s copyright
`in 1991. Alternatively, the Richlin heirs resort to the theory
`underlying their complaint. They contend that publication of
`the Treatment with the Motion Picture secured a statutory
`copyright for the Treatment, which was renewed on their
`behalf by MGM when it renewed the Motion Picture’s copy-
`right. We address each argument in turn.
`
`A. Coauthorship of the Motion Picture
`
`To determine whether Richlin had an interest in the Motion
`Picture’s federal statutory copyright, we must consider the
`question of coauthorship. The Richlin heirs argue that because
`Richlin coauthored the Treatment, which was a substantial
`component of the Motion Picture, he is also a coauthor of the
`Motion Picture. This coauthorship, according to the Richlin
`heirs, gives them an interest in the Motion Picture’s copy-
`right. Under this facially appealing, but legally unsustainable,
`argument, an interest in the renewal term of copyright and all
`subsequent motion pictures and adaptations based on that
`copyright would revert to the Richlin heirs.8 See 17 U.S.C.
`§ 201(a) (1976) (“The authors of a joint work are coowners
`of copyright in the work.”).
`
`[1] We agree with the district court that Richlin and
`Edwards were not coauthors of the Motion Picture. Richlin
`and Edwards wrote the Treatment in 1962, and the Motion
`Picture was copyrighted when published with notice in 1963;
`therefore, the Richlin heirs’ claim of coauthorship is governed
`by the 1909 Act. The 1909 Act, however, did not expressly
`mention or define joint works or coauthorship. Nevertheless,
`as early as 1915, in Maurel v. Smith, Judge Learned Hand
`applied the universally adopted common law definition of
`
`8The Richlin heirs’ claim to the renewal copyright in the Motion Picture
`rests on the rule that an assignment of renewal rights by the author of a
`copyrighted work does not become effective unless the renewal interest
`vests in the then-living author. See Abend, 495 U.S. at 220.
`
`

`
`7240
`
`RICHLIN v. METRO-GOLDWYN-MAYER
`
`joint authors to the 1909 Act, holding that they “undertake
`jointly to write a play, agreeing on the general outline and
`design and sharing the labor of working it out.” 220 F. 195,
`199 (S.D.N.Y. 1915) (quoting Levy v. Rutley, L.R. 6 C.P. 523
`(1871)); see also Edward B. Marks Music Corp. v. Jerry
`Vogel Music Co., 140 F.2d 266, 267 (2d Cir. 1944) (“[I]t is
`enough that they mean their contributions to be complemen-
`tary in the sense that they are to be embodied in a single work
`to be performed as such.”); LIOR ZEMER, THE IDEA OF AUTHOR-
`SHIP IN COPYRIGHT 190 n.15 (2007) (“In Levy v. Rutley, the ear-
`liest recorded case on joint authorship, Byles[,] J[.] found
`joint authorship to exist although one person had contributed
`a very small amount of work to the execution.”). Then, in Pic-
`ture Music, Inc. v. Bourne, Inc., a district court suggested a
`“statutory revision[ ] of the copyright law [that] would define
`a ‘joint work’ as one ‘prepared by two or more authors with
`the intention that their contributions be merged into insepara-
`ble or interdependent parts of a unitary whole.’ ” 314 F. Supp.
`640, 646 (S.D.N.Y. 1970). This was the precise wording that
`Congress used to define “joint work” when it enacted the
`1976 Act. See 17 U.S.C. § 101 (1976). As Professor Nimmer
`explains, “[t]he 1909 Act did not expressly refer to the doc-
`trine of joint ownership, but its principles, largely unchanged
`under the current Act, were firmly established by case law,
`and were applicable to common law as well as statutory copy-
`right.” 1 M. NIMMER & D. NIMMER, NIMMER ON COPYRIGHT
`§ 6.01 n.1 (2007). Because the 1976 Act incorporated the
`well-established case law interpreting the definition of “joint
`work” under the 1909 Act, we may assess the Richlin heirs’
`claim under the more fully developed rubric of the 1976 Act.
`
`[2] Section 101 of the 1976 Act defines “joint work” as “a
`work prepared by two or more authors with the intention that
`their contributions be merged into inseparable or interdepen-
`dent parts of a unitary whole.” 17 U.S.C. § 101 (1976). A
`“joint work” requires each author to make “an independently
`copyrightable contribution.” Ashton-Tate Corp. v. Ross, 916
`F.2d 516, 521 (9th Cir. 1990). “The authors of a joint work
`
`

`
`RICHLIN v. METRO-GOLDWYN-MAYER
`
`7241
`
`are coowners of copyright in the work.” 17 U.S.C. § 201(a)
`(1976). Even if a person’s contribution is minor, once he is
`accorded joint authorship status, he enjoys all benefits of joint
`authorship. See Erickson v. Trinity Theatre, Inc., 13 F.3d
`1061, 1068 (7th Cir. 1994); Cmty. for Creative Non-Violence
`v. Reid, 846 F.2d 1485, 1498 (D.C. Cir. 1988), aff’d on other
`grounds, 490 U.S. 730 (1989); Bencich v. Hoffman, 84 F.
`Supp. 2d 1053, 1055 (D. Ariz. 2000); 1 NIMMER § 6.08.
`
`[3] In Aalmuhammed v. Lee, 202 F.3d 1227, 1234 (9th Cir.
`2000), we set forth three criteria for determining whether a
`work is jointly authored under § 101. First, we determine
`whether the “putative coauthors ma[de] objective manifesta-
`tions of a shared intent to be coauthors.” Id. A contract evi-
`dencing intent to be or not to be coauthors is dispositive. Id.
`Second, we determine whether the alleged author superin-
`tended the work by exercising control. Id. Control will often
`be the most important factor. Id. Third, we analyze whether
`“the audience appeal of the work” can be attributed to both
`authors, and whether “the share of each in its success cannot
`be appraised.” Id. (quotations omitted).
`
`The plain language of § 101 makes clear that Richlin is a
`coauthor of the Treatment. Viewing the facts in the light most
`favorable to the Richlin heirs, Richlin and Edwards could
`have secured statutory copyright for the Treatment before
`assigning it to Mirisch, as it was a fourteen-page original cre-
`ative story written jointly by Richlin and Edwards. See 17
`U.S.C. § 4 (1909) (“The works for which copyright may be
`secured under this title shall include all the writings of an
`author.”); 17 U.S.C. § 102 (1976) (“Copyright protection sub-
`sists . . . in original works of authorship fixed in any tangible
`medium of expression . . . .”); 1 NIMMER §§ 2.04 and 6.01
`(articulating standards for “literary works” and “joint works”).
`Moreover, the Treatment “was prepared by two or more
`authors,” Richlin and Edwards, who clearly intended that it be
`“merged into inseparable or interdependent parts of a unitary
`whole.” 17 U.S.C. § 101 (1976). Indeed, this is what Richlin
`
`

`
`7242
`
`RICHLIN v. METRO-GOLDWYN-MAYER
`
`and Edwards accomplished when they presented the com-
`pleted Treatment to Mirisch.
`
`But the Treatment is not the appropriate reference point.
`The Richlin heirs’ claim for declaratory relief and an account-
`ing rests on their argument that, by virtue of his contribution
`to the Treatment, Richlin is coauthor of the Motion Picture.
`Thus, the work that must be examined to determine joint
`authorship is the Motion Picture, not the Treatment. The plain
`language of § 101 does not shed light on whether Richlin was
`a coauthor of the Motion Picture. Applying the Aalmuham-
`med factors to Richlin’s involvement in the Motion Picture,
`however, confirms that Richlin and Edwards were not coau-
`thors of that work.
`
`[4] We must first determine whether “putative coauthors
`ma[de] objective manifestations of a shared intent to be coau-
`thors.” Aalmuhammed, 202 F.3d at 1234. A contract evidenc-
`ing intent to be or not to be coauthors is dispositive. Id. In the
`absence of a contract, we look to other objective evidence of
`intent. Id. The district court found that the Assignment was
`contractual evidence of an objective manifestation that the
`parties did not intend to be coauthors. The district court rea-
`soned that the Assignment conveyed forever “that certain
`story . . . including any adaptations, treatments, scenarios, dia-
`logue and/or screenplays.” Professor Nimmer clarifies that
`“forever,” when used in conjunction with conveyance of a
`copyrighted work (which the Treatment was not), “should be
`considered a shorthand for ‘the original and renewal term of
`copyright, plus any extensions, reversions, resurrections, or
`other circumstances that prolong the term.’ ” 3 NIMMER
`§ 10.14[N]. Although the Treatment was not the subject of a
`federal statutory copyright, we agree with the district court
`that when Richlin and Edwards conveyed all present and
`future interests in the Treatment and derivative works to
`Mirisch, the parties to the contract could not consistently
`entertain the intent that Richlin and Edwards would be coau-
`thors of the Motion Picture. Rather, Mirisch was given the
`
`

`
`RICHLIN v. METRO-GOLDWYN-MAYER
`
`7243
`
`right to exploit the Treatment in any way he chose. In any
`event, no language in the Assignment indicates any intent that
`Richlin and Edwards were to coauthor the Motion Picture.
`
`[5] In light of the Assignment, the Employment Agreement,
`and the surrounding circumstances, there were no “objective
`manifestations of a shared intent to be coauthors.” Aalmuham-
`med, 202 F.3d at 1234. The Assignment conveyed to Mirisch
`all present and future rights in the Treatment and derivative
`works, including the common law “copyright.” Neither the
`Assignment nor the Employment Agreement said anything
`about Richlin becoming a coauthor of the Motion Picture.
`None of The Pink Panther sequels lists Richlin as coauthor;
`rather, they simply give him screen credit as the creator of the
`original story and characters. Both the initial- and renewal-
`term statutory copyright registrations list Mirisch and its
`successors-in-interest as authors of the Motion Picture, not
`Richlin. Furthermore, the Employment Agreement specified
`that Richlin and Edwards were Mirisch’s “employees,” ren-
`dering the screenplay a “work made for hire,” which is also
`inconsistent with the view that Richlin coauthored the Motion
`Picture.9 See 17 U.S.C. § 26 (1909); Warren v. Fox Family
`Worldwide, Inc., 328 F.3d 1136, 1140 (9th Cir. 2003) (“[I]f
`the work is made for hire, ‘the employer or other person for
`
`9On November 25, 1992, MGM sent a check for $8,563.62 and a letter
`to Richlin’s widow, Louise Richlin, stating “[t]his check constitutes pay-
`ment in full for any rights used in or relating to [Son of Pink Panther] that
`are owned or controlled by Maurice Richlin or by you pursuant to the
`Writers Guild of America agreement or otherwise.”
`Upon first inspection, this would appear to be a clue as to which parties
`or persons own the renewal interest in the Motion Picture. However, such
`monies paid are but one more lead into a dead end. In February 1965,
`Richlin, Edwards, and the Writers Guild of America entered into a settle-
`ment agreement with Mirisch resolving a dispute regarding A Shot in the
`Dark and the applicability of sequel payments. The check paid to Louise
`Richlin in 1992 was issued pursuant to this settlement agreement, which
`is a contractual matter unrelated to the question of ownership of the
`renewal copyright interest in the Motion Picture.
`
`

`
`7244
`
`RICHLIN v. METRO-GOLDWYN-MAYER
`
`whom the work was prepared is considered the author . . . ,
`and, unless the parties have expressly agreed otherwise in a
`written instrument signed by them, owns all the rights in the
`copyright.’ ” (quoting 17 U.S.C. § 201(b) (1976))).
`
`[6] The second factor—whether Richlin supervised the
`Motion Picture by exercising control—favors MGM as well.
`Richlin did not exercise any supervisory powers over the
`Motion Picture, a factor that Aalmuhammed indicates will
`often be the most important. Aalmuhammed, 202 F.3d at
`1234. The Assignment granted to Mirisch “forever . . . the
`absolute and unqualified right to use the [Treatment], in
`whole or in part, in whatever manner said purchaser may
`desire.” Thus, while Richlin may have had control over the
`Treatment as originally written, he had no control over how
`the Treatment was incorporated into the Motion Picture.
`Moreover, although Richlin and Edwards cowrote the screen-
`play, the screenplay was a work made for hire pursuant to the
`Employment Agreement, making Mirisch the author/owner of
`the screenplay. 17 U.S.C. § 26 (1909); Warren, 328 F.3d at
`1140. Any control that Richlin may have had over the screen-
`play does not lend support to his claim that he exercised any
`control over the creation of the Motion Picture.
`
`We agree with the district court that the third factor,
`whether “the audience appeal of the work” can be attributed
`to both authors, and whether “the share of each in its success
`cannot be appraised,” favors the Richlin heirs, in light of the
`summary judgment standard. Aalmuhammed, 202 F.3d at
`1234. As the district court noted, it is nearly impossible to
`determine how much of the Motion Picture’s audience appeal
`and success can be attributed to the Treatment. Although the
`characters that Richlin helped to create formed the basis for
`the Motion Picture’s success, perhaps it was Peter Sellers’s
`legendary comedic performance, Henry Mancini’s memorable
`score, or Blake Edwards’s award-winning direction10 —none
`
`10Edwards was nominated for an Academy Award in 1982 for writing
`Victor/Victoria, and received an honorary Academy Award in 2003 “in
`
`

`
`RICHLIN v. METRO-GOLDWYN-MAYER
`
`7245
`
`of which can be attributed to Richlin—that was the main
`draw. Nevertheless, given that the Motion Picture adopted the
`characters and original story from the Treatment, and that,
`absent the Treatment, the Motion Picture likely would not
`exist, we cannot say the district court erred in finding that this
`factor favors the Richlin heirs.
`
`[7] Given that the two primary Aalmuhammed factors
`weigh most heavily in favor of Appellees, we hold that
`Richlin was not a coauthor of the Motion Picture. Therefore,
`there is no renewal interest in the Motion Picture that might
`conceivably have vested in the Richlin heirs under a theory of
`coauthorship.
`
`B.
`
` Significance of “Publication” of the Treatment
`
`[8] At the time the Treatment was incorporated into the
`Motion Picture,11 the Treatment was neither published nor the
`subject of federal statutory copyright. From this predicate, the
`Richlin heirs weave together a string of copyright truisms
`culled principally from Batjac Productions Inc. v. Goodtimes
`Home Video Corp., 160 F.3d 1223 (9th Cir. 1998), Stewart v.
`Abend, 495 U.S. 207 (1990), and Selznick v. Turner Enter-
`tainment Co., 990 F. Supp. 1180, 1185 (C.D. Cal. 1997), to
`
`recognition of his writing, directing and producing an extraordinary body
`of work for the screen,” such as The Pink Panther series and Breakfast at
`Tiffany’s.
`11All parties agree, at least for purposes of summary judgment and
`appeal, that the Treatment was incorporated into the Motion Picture.
`Those copyrightable elements of the Treatment that were not incorporated
`into the Motion Picture retained their common law copyright protection
`because they were not published, and received statutory copyright protec-
`tion with the enactment of the 1976 Act. See 17 U.S.C. § 303(a) (1976);
`3 NIMMER § 9.09[A]. The questions of whether any such copyrightable ele-
`ments that were not incorporated into the Motion Picture exist, and if so,
`what they might be and whether they constitute a copyrightable “work,”
`are not before us on this appeal.
`
`

`
`7246
`
`RICHLIN v. METRO-GOLDWYN-MAYER
`
`theorize that the Treatment achieved statutory copyright pro-
`tection when the Motion Picture was published with notice in
`1963. They further argue that because Richlin predeceased the
`vesting of the statutory renewal rights in the Treatment, those
`renewal rights reverted to the Richlin heirs. When MGM
`renewed the statutory copyright in the Motion Picture, this
`renewed the Treatment’s statutory copyright on behalf of the
`Richlin heirs.12 And, because the Motion Picture incorporated
`the Treatment, the Richlin heirs are now co-owners of the
`Motion Picture’s copyright.
`
`[9] Our analysis begins with an assessment of exactly what
`rights Richlin did and did not own when he assigned all rights
`in the Treatment to Mirisch on May 24, 1962. The original
`copyright in the Motion Picture is governed by the 1909 Act
`because the Treatment and the Motion Picture were created
`before January 1, 1978, when the Copyright Act of 1976
`(“1976 Act”) became effective. 17 U.S.C. § 304 (1976). The
`copyright was renewed in 1991, after the effective date of the
`1976 Act. Thus, to analyze questions arising from events that
`occurred before January 1, 1978, such as who is the author of
`the Treatment, the 1909 Act applies; for events that occurred
`after that date, such as registration of the renewal copyright,
`the 1976 Act applies. See 1 NIMMER OV-7 (“In determining
`the corpus of law that governs a particular situation, the guid-
`ing principle should be to apply the law in effect when the
`infringement (or other activity), upon which suit is based,
`arises.”).
`
`[10] Unlike the 1976 Act, the 1909 Act recognized a dis-
`tinction between state (or common law) and federal copyright
`protection. Batjac, 160 F.3d at 1226. Unpublished works were
`protected by state common law or statute, while works pub-
`
`12According to the Richlin heirs, because Edwards lived to the renewal
`term, MGM retained the right to renew the supposed statutory copyright
`in the Treatment, even though Richlin’s interest in the Treatment had
`reverted to his heirs.
`
`

`
`RICHLIN v. METRO-GOLDWYN-MAYER
`
`7247
`
`lished in accordance with the statutory formalities received
`federal statutory protection. Id. State common law protection
`—which afforded only rights of first publication and transf-
`erability of ownership—commenced when the work was cre-
`ated and ended when the work was published. See 1 NIMMER
`§ 2.02. Once published, the work would obtain federal statu-
`tory protection, as long as it was published with proper notice.
`17 U.S.C. §§ 10, 19 (1909). The duration of statutory copy-
`right was twenty-eight years, with the option to renew for
`another twenty-eight years. Id. § 24.
`
`[11] Because the Treatment was not published at the time
`of the Assignment, Richlin’s and Edwards’s property interest
`in it is governed by California law at the time of transfer.
`Wheaton v. Peters, 33 U.S. 591, 658 (1834) (“When . . . a
`common law right is asserted, we must look to the state in
`which the controversy originated.”). In California, “the basic
`principles governing ‘common law’ copyright have been cod-
`ified in Civil Code section 980 et seq.” Zachary v. W. Publ’g
`Co., 75 Cal. App. 3d 911, 918 (1977). When Richlin and
`Edwards submitted the Treatment to Mirisch, it was the sub-
`ject of California state law (otherwise known as “common
`law”) copyright protection. As coauthors, in the absence of a
`contrary agreement, they were joint owners of the Treatment.
`CAL. CIV. CODE § 981(a) (1949). Pursuant to former California
`Civil Code § 980 et seq., they had the right “to exclusively
`possess it, use it, and transfer or otherwise dispose of it.” 13
`WITKIN SUMMARY OF CAL. LAW (10th ed. 2005) Personal Prop-
`e