By: Jennifer Yamin*
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In Aalmuhammed v. Lee, the Ninth Circuit established a test for determining whether an individual contributor to a work may qualify as a joint author. The test identified three main factors: 1) the author must superintend the work by exercising control; 2) the putative co-authors must make objective manifestations of a shared intent to be co-authors; and 3) the audience appeal of the work must turn on both contributions and the share of each in its success cannot be appraised. Applying these factors, the court concluded that authorship rights could not be granted to a film consultant hired to assist in the creation of the film Malcolm X despite his sizable contributions to the final product.
By analyzing the unique interplay between intellectual property rights and entertainment industry employment law, this Note explores the harmful effects of the Aalmuhammed test on employment and unions across all types of entertainment works. The Note argues that the Ninth Circuit’s test hinders, rather than furthers Congress’s explicit constitutional duty to promote the growth of the arts. In doing so, the test establishes a dangerous precedent that is incompatible with the modern operation of the entertainment industry and paradoxically is detrimental to the very people it intends to protect: creators. The Note concludes that the Aalmuhammed test should no longer serve as the standard courts rely on to determine authorship rights and offers various proposals for reform.