An idea of authorship: Orson Welles, 'The War of the Worlds' copyright, and why we should recognize idea-contributors as joint authors.

• Author: McFarlin, Timothy J.
• Position: II. Essential Ideas: The War of the Worlds' Creation in Print and on the Air D. Creative Litigation: Welles v. CBS through Conclusion, with footnotes, p. 733-767

D. Creative Litigation: Welles v. CBS

The Mercury's War of the Worlds broadcast--the ground-breaking style, the public reaction, the media sensation--has continued to grip our imaginations, not just in America but around the world. (115) Much less remembered, however, is Orson Welles's battle for co-ownership and control of its copyright. Although a complete history of the Welles litigation would not suit our purposes here, some brief background on his claims and the courts' rulings will aid our ensuing look at idea-contribution and joint authorship, helping us understand both why Welles lost his bid for a share in the copyright as well as how we might view things differently today.

1. Welles's Claims

   Almost twenty years after The War of the Worlds first blazed across the airwaves, television had overtaken radio as the news and entertainment epicenter of American life. CBS, the former patron of Welles's radio work, decided that it wanted to do a "docudrama" about the public's frightened reaction to the radio broadcast, and so it produced the movie The Night America Trembled. (116) Televised in 1957, it included scenes depicting the Mercury actors reading lines from the script, intercut with mock footage of a terror-stricken audience. (117)

   A few months before The Night America Trembled aired, CBS had reached out to offer Welles an acting part in it. Welles, believing he controlled the rights to the War of the Worlds broadcast, replied with a demand that he write and direct it instead. (118) CBS had already reached an agreement with Howard Koch, however, granting it the right to use the script in the movie, and so CBS proceeded without Welles's involvement or permission. (119)

   Welles sued on September 8, 1959, in California state court, and CBS quickly removed the case to the U.S. District Court for the Southern District of California, Judge Leon R. Yankwich presiding. (120) A Romanian-born Franklin Delano Roosevelt appointee and U.S. Army veteran of the First World War, Judge Yankwich had also built a formidable reputation as an intellectual property scholar, deciding important Hollywood cases and publishing articles on the subject in the University of Chicago's and University of Southern California's law reviews. (121)

   Most notably, Judge Yankwich was the first to apply the now commonly used term "scenes a faire" (i.e., "scenes which must be done") to the copyright doctrine which says that where certain elements are indispensable, or at least standard, in expressing a particular idea (e.g., using the elements of a craft flying through space to express the idea of invading aliens), those expressive elements are as unprotectable as the idea. (122) Given Judge Yankwich's knowledge of the field as well as his skepticism toward the protection of ideas, Welles could not have found a much tougher audience for what was, ultimately, a novel series of claims.

   In the first of these claims, Welles alleged that because he "conceived, originated, devised, [and] created [the] style" of the War of the Worlds broadcast, he was its "co-author and proprietor." (123) As such, Welles asserted that he was the "proprietor of the entire right, title and interest in and to" the broadcast, "together with common law copyrights and of all rights and privileges secured thereby" and that CBS had infringed his copyright because The Night America Trembled used a portion of the War of the Worlds script without his permission. (124)

   Welles's two other claims centered on his previous contractual relationship with CBS as head of The Mercury Theatre on the Air. Specifically, Welles alleged in his second claim that CBS had breached an implied term of his radio contract that required his permission if CBS wanted to use any of the shows directed and produced by Welles. (125) In his third and final claim, Welles alleged that another implied term in his CBS contract was that CBS must grant him the first opportunity to serve as "producer, director and consultant" on any "production, adaptation or revision" of the shows he produced for CBS, including the War of the Worlds broadcast. (126)

2. Trial and Appeal

   The only testimony taken in the case was that of two former members of The Mercury Theater on the Air--Welles himself, in a July 8, 1960 deposition at the American Embassy in London, and Howard Koch, at a deposition taken a month earlier in New York City (testimony which, in relevant part, was quoted above). (127) The parties agreed to try the case before the judge, not a jury, and also agreed to simply read the depositions into evidence at the trial as opposed to calling live witnesses. (128)

   At the conclusion of the trial, Judge Yankwich told the parties that they didn't have to wait for his decision, and, in announcing his ruling from the bench, he quickly disposed of Welles's second and third claims, explaining that the nature and language of Welles and CBS's contract did not support the broad implied terms that Welles ascribed to it. (129) In other words, CBS would not, without expressly stating it in the contract, have given Welles the perpetual right to control what CBS did with any show he had produced. (130)

   So, as Judge Yankwich remarked from the bench, "[i]t seems ... that the whole matter here turns upon the copyright." (131) Yankwich discounted Welles's testimony about his heavy involvement in writing the script--believing Koch's version of events instead--but he gave Welles credit for conceiving the idea behind it. (132) This conception, however, because it was merely an idea, could give Welles no copyright in the War of the Worlds radio play. "The working out of the idea is in the script," the Judge informed the parties, "[t]here is no right in an idea." (133)

   Cementing this ruling, Judge Yankwich issued his written Findings of Fact and Conclusions of Law on May 4, 1961, which firmly stated, "Although plaintiff made some minor changes and modifications in said script after it had been completed by Howard Koch, plaintiff was neither author nor a co-author thereof." (134)

   Welles appealed the ruling to the Ninth Circuit, which issued its decision on October 3, 1962, affirming the trial court's decision. (135) Most pointedly, the Ninth Circuit recited the general rule that "ideas per se are not copyrightable, but that the words or means of embodiment or expression of those ideas are," a rule which the Ninth Circuit noted was determinative of Welles's copyright claim. (136) Welles thus recovered nothing from his case against CBS.

   A much more far-reaching consequence of Welles's failed suit, however, was the cementing of Howard Koch's legal status as the broadcast's sole author. Ever since the Ninth Circuit's ruling, Howard Koch has been the only member of the Mercury Theatre on the Air to profit from the copyright in the War of the Worlds. (137) Koch's descendants, since his death in 1995, continue to receive royalties from anyone who wants to rebroadcast, perform, or adapt the radio play. (138) Welles and his descendants have received nothing. (139)

   3. Recognizing Idea-Contributors as Joint Authors

   Orson Welles, as Martin Scorsese has perceptively observed, was an iconoclast. (140) Whether it was film, theater, or radio, he blatantly bucked convention, fighting to bend the systems in which he worked to his own vision. So too then, in his suit against CBS, Welles tried to bend the law to his vision of what it should be--a vision that he, as co-author and "proprietor" of the War of the Worlds broadcast, had the right to dictate whether and how CBS used it, despite the fact that CBS had already acquired that right from his co-author Howard Koch. (141)

   That Welles ultimately failed in this attempt should come as no real surprise--a co-author cannot block another co-author from licensing a copyrighted work, nor can he stop the licensee from using it. (142) He has only the right to demand from his co-author an equal share of the profits. (143) And had the courts who heard Welles's suit decided it on that ground, and that ground alone, there could be little complaint with their ruling. In hindsight, Judge Yankwich likely should have dismissed the case against CBS and told Welles that, assuming he had any rights in the War of the Worlds radio play, his only recourse was to sue Mr. Koch for a share of the proceeds.

   Instead, the trial and appellate courts decided to expound on whether Welles was a co-author at all. And in so doing, they infused their rulings with the same problem that continues to plague the courts today--the misconception that because an idea standing alone is uncopyrightable, it must follow that a person who contributes only ideas cannot be a joint author in a collaborative copyrighted work.

   Let's examine, first, why this is a misconception and why we should dispel it.

   A. Why We Should Recognize Idea-Contributors

1. An Author is More Than an Expressionist

   Courts, as we saw earlier, have largely defined an "author" as an expressionist: a person "who translates an idea into a fixed, tangible expression entitled to copyright protection." (144) And because the Copyright Act's definition of "joint work" speaks of "a work prepared by two or more authors," courts have denied joint authorship to idea-contributors on the basis of this definition of "author." (145) In other words, if an author is someone who expresses an idea in a fixed, tangible medium, a person who contributes only intangible ideas cannot be an author.

   The premise--one must be an author to be a joint author--is correct, but is the definition? Before delving into the statutory language, we should begin with the document that provides the Copyright Act's underlying legal authority, the U.S. Constitution, and the Constitution's use of the word "authors," for the basic reason that even if idea-contributors can qualify as joint authors under the Act, if the Constitution doesn't permit it, the case is already closed. (146)

   The Constitution authorizes Congress...