Just over a year ago I pointed to a lawsuit brought by Bob Yari, producer of the 2006 Best Picture Oscar winner Crash, against the Academy of Motion Picture Arts and Sciences (AMPAS) and the Producers Guild of America.Â AMPAS writes the rules for the Academy Awards, and in 2005, before the competition that resulted in a win for Crash, AMPAS changed the rules on producing credit in connection with the Best Picture award.Â Not more than threeÂ producers could “win” for a single movie.Â Yari was one of six producers with a screen credit for producing Crash, but in the nomination process AMPAS relied on designations supplied by the Producers Guild, which omitted him.Â Crash won; Yari did not; Yari sued.
AMPAS and the Guild demurred; the trial court sustained the demurrer; Yari declined to amend; and two days against the Second District Court of Appeal in California affirmed.Â Though California recognizes a “common law right of fair procedure” applicable to certain decisions by “quasi-public”Â private institutions, the court concluded that these defendants are not “quasi-public” for purposes of the rule, and even if they were, their decision is not the kind of procedure to which the “common law right” applies.Â The court’s discussion swept away Yari’s related claims for breach of fiduciary duty, for breach of contract, and for promissory estoppel.Â The court’s opinion is online here.
I confess to a fascination with the status hierarchies of the motion picture business that is probably outdated.Â Still, I think that the Yari case is interesting in part because of the light that it casts on the permutations and applications of the “romantic authorship” idea that some find lurking in copyright history and even current doctrine.
Yari’s basic contention was this, according to the court (which, given the procedural posture of the case, was basically relying on Yari’s allegations):Â Yari “alleged that the Guild’s and Academy’s decision tarnished his reputation because it amounted to a public statement that he was a â€œmere â€˜money manâ€™ â€œ who did not perform creative functions on Crash, that if he had been given the credit, he would have received the â€œrecognition, prestige, financial and professional benefits attained by only the most successful motion picture producers,â€ and that â€œ[h]e has been deprived of each of these things.â€
In other words, authorshipÂ was at stake, in a sense that is closely related to authorship in copyright contexts.Â And authorship here is constructed via a process that reveals its socially and culturally manufactured character more clearly than most.Â But unlike copyrightable authorship, which is constructed socially and culturally and validated legally, in this case authorship is, by judicial decision, is constructed socially and culturally and explicitly left by the court to be validated by unreviewable private processes.Â
Anyone who has paid attention to the Academy Awards and to cultural awards processes has known this for a long time.Â (For good measure, I’ll toss in a link to Menand’s review of English’s Economy of Prestige, just to preempt part of that possible comment.)Â It is interesting to see Yari bring it into open court.Â
A quick conceptual and purely hypothetical question:Â If fair use determinations are so important as matters of public policy that many law professors argue that “no fair use” provisions ofÂ copyright licenses should be preempted by the Copyright Act, then why isn’t “authorial status”Â similarly imbued with the public interest?Â Should private “authorship” determinations — perhaps limited to those arising under the Copyright Act,Â but perhaps not — be trumped by application of the same statute?Â