By now, you’ve probably heard the agonized shrieks of your friendly neighborhood copyright lawyer, decrying the Ninth Circuit’s opinion Garcia v. Google. If you haven’t had the time or inclination to read the opinion, here is a quick synopsis, followed by our list of nine ways in which many find the Ninth Circuit’s February 26, 2014 decision somewhat troubling.
Cindy Lee Garcia agreed to act in a low budget film called “Desert Warrior,” for which she was paid $500. The film she signed up for was never made, but the footage was repurposed into the now-infamous “Innocence of Muslims” trailer. Garcia’s voice was redubbed so that she appeared to be asking, “Is your Mohammed a child molester?” When the trailer appeared on YouTube (owned by Google), Garcia became the subject of death threats, including even an fatwa from an Egyptian cleric. Garcia filed eight DMCA takedown notices with YouTube, alleging copyright infringement. When YouTube refused to remove the video, she sued the filmmakers for defamation and fraud, and also sued YouTube for copyright infringement.
Garcia filed a motion for injunctive relief, asking the District Court to force YouTube to take down the video. The District Court refused on the grounds that, even by Garcia’s own admission, she was not an author or co-author of the film, and therefore had no legitimate copyright interest in it. But on February 26, 2014, the Ninth Circuit reversed, holding that Garcia indeed probably had a protectable copyright interest in her 5-second performance in the trailer. The Ninth Circuit ordered that the video be removed from YouTube. Since its release, this decision has received almost nothing but criticism.
Nine Troubling Things about the Ninth Circuit’s Garcia v. Google Opinion
1. Authorship. Ownership of a copyright is vested in the first instance in the “author” of a “work.” You can perform a work (e.g., play some music, read a poem, etc…), but that performance itself does not make you the author of a new copyrightable “work.” The only work at issue here is the film. Traditionally, the author of a film is the director, producer, etc. – i.e., whoever makes the thing. But Garcia, wishing to distance herself from the film’s message, disavowed any assertion of authorship or joint-authorship and claimed copyright only in her own “performance.” The court, contrary to how copyright law has previously been interpreted, held that Garcia had some vague novel species of copyright authorship in her performance, as distinct from the film.
2. Fixation. In order for a work to be copyrightable, it has to be fixed by the author in a tangible medium of expression. Here, the only fixation of Garcia’s performance was in the film. Since Garcia didn’t “fix” her performance independently, the court in effect borrows the fixation element from another author and another work, even though Garcia disavows any relationship with that other author and work. The court tries to soften the unprecedented nature of its ruling by pointing out that “pantomime and choreographic” works are independently copyrightable. However, these types of work still need to be “fixed” by the author in order to be enforceable, for example in diagrams or in written descriptions.
3. Work for Hire. As the court acknowledges, most individual contributions to a film are considered works for hire, meaning that the copyright in the creative contribution belongs to the employer. This is often governed by contract, but just as often is governed by long-held assumptions about how copyright and employment law work. Here, the Court effectively held that only persons engaged in the “regular business” of filmmaking can take advantage of the work for hire doctrine in the movie context. Otherwise, the court said (I’m not making this up), “every schmuck with a video camera becomes a movie mogul.”
4. Practical Implications. The practical implications of the decision are potentially enormous. Every person who appears in a movie or a photograph would have a potential separable copyright interest in their performance — distinct and in addition to their right of publicity. Would this new performance right be worth anything? Maybe not. But it would be enough to issue a DMCA takedown notice. Mom, take down those baby pictures of me from your Facebook page! They make me look pudgy and besides, I own the copyright in my performance!
5. Just Contract Around It! The majority actually recognizes that what it has done will leave films and other collaborative works “entangled in an impenetrable thicket of copyright.” However, the court basically excuses this potential havoc by stating that “it rarely comes to that because copyright interests in the vast majority of films are covered by contract . . .” In other words: if you think this opinion is crazy, don’t worry, because you can contract around it.
6. Is this really going to help Ms. Garcia? There is little doubt that this was a results-driven opinion. The court admitted as much, noting that since Ms. Garcia had received credible death threats, it was “best to err on the side of life.” This is certainly a legitimate concern. However, the court fails to make a convincing case that removing the video from YouTube will nullify the death threats or cause the fatwa to be lifted.
7. The Balance of Equities. In balancing the equities, the court properly considered Garcia’s legitimate interest in her physical safety. However, on the other side, the court considered the bad acts of the filmmakers. What’s wrong with this equation is that the filmmakers are not the parties being enjoined. Moreover, the court refused to give credence to YouTube’s First Amendment arguments on the ground that the First Amendment doesn’t protect copyright infringement.
8. This Isn’t Really About Copyright. And that brings us to the real crux of the matter. Ms. Garcia’s complaint is not really about copyright in the first place. There has been a spate of recent cases and disputes in which copyright law has been used as a cover for claims that in reality are about defamation, privacy, trademark infringement, the right of publicity or simply where someone is trying to erase speech they don’t like. In the case of YouTube, it has separate voluntary takedown policies for trademark infringement, defamation, privacy violations and harassment. So why is everyone trying to use copyright law instead? Probably because copyright law, unlike those other causes of action, give you the means to force a third party involuntarily to take down material from the internet quickly and without First Amendment concerns. Here, Garcia’s real problem was what the film did to her reputation and privacy interests. Only by a rather unusual interpretation of the Copyright Act has this tort claim against the filmmakers been transformed into a copyright claim against YouTube.
9. What about Fair Use? Even if there is such a thing as a separable copyright in performance, what about a fair use? The Innocence of Muslims has become a legitimate topic of political, religious and cultural debate worldwide. Is the use of Garcia’s 5-second appearance enough to completely stifle global criticism, commentary and scholarship? And there is little doubt that the court’s aim, far from simply dealing with a single instance of copyright infringement, has been to do exactly that. In fact, the court kept its order secret for several days before its release, expressly in order “to prevent a rush to copy and proliferate the film before Google can comply with the order.” In other words, to try to prevent the video’s preservation by third parties, without regard to the fact that undoubtedly many of those third parties’ uses would be protected by the fair use doctrine or the First Amendment.
YouTube’s Motion for an Emergency Stay of the order was denied. The company has already indicated its intention to move for en banc review of the decision.