Download a PDF version of this article here. Chloe L. Kaufman* Despite the commonly shared belief that Americans have an undeniable right to freedom of speech, private-sector employees receive no constitutional protection for employer regulations of or reactions to their speech and federal and state statutes provide extremely limited protections. Consequently, on-air professionals in the entertainment industry, including Curt Schilling,… read more
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.
In Glatt v. Fox Searchlight Pictures Inc., the Second Circuit established a new test — the “primary beneficiary&r dquo; test — for determining when unpaid internships may be provided by employers. In doing so, the Second Circuit rejected a strict “all–or–nothing“ six–factor test from the Department of Labor, and held that unpaid internships do not offend the Fair Labor Standards Act so long as the intern, and not the employer, is the “primary beneficiary” of the employment relationship. This Note primarily argues that the “primary beneficiary” test is superior to the rigid test proposed by the Department of Labor. This is because the “primary beneficiary” test provides a practical, flexible, and well– approach in analyzing the totality of the employee–intern relationship, thereby allowing employers to continue to provide meaningful unpaid opportunities while providing adequate safeguards from exploitation. In making this conclusion, this Note analyzes the problem through the lens of the entertainment industry, where unpaid internships are often a prerequisite to finding fulltime employment.