First Circuit Notes Split Re Copyright Act Requires Written Agreement Before Creation of the Work

Per TMTV v. MASS PRODUCTIONS, INC.; EMMANUEL --- F.3d ----, 2011 WL 2306514 (1st Cir. June 13, 2011):

Jiménez and Morales confirmed in depositions that this was their own oral understanding with the production company; but the statute [Copyright Act] requires express agreement in a signed written instrument, see 17 U.S.C. § 101 (definition); and the circuits are divided as to whether the language and policy require the writing before the creation or at least the completion of the work.^FN3

FN3. Compare Schiller & Schmidt, Inc. v. Nordisco Corp., 969 F.2d 410, 413 (7th Cir.1992) (written work-for-hire agreement must precede creation of work), and Gladwell Gov't Servs., Inc. v. Cnty. of Marin, 265 F. App'x 624, 626 (9th Cir.2007) (same), with Playboy Enters., Inc. v. Dumas, 53 F.3d 549, 559 (2d Cir.) (written agreement might postdate creation if “memorializing” earlier oral agreement), cert. denied, 516 U.S. 1010 (1995). See also 1 Nimmer & Nimmer, supra, § 5.03[B][2][b], at 5–56.