Back in last December, Ben
told us
about the US Ninth Circuit's en banc hearing of the Garcia v Google
appeal. Cindy Garcia is the American actress who seems to have been
tricked into playing a role in the controversial film entitled
Innocence of Muslims, and she appeared for around 5 seconds in a
trailer for the film which was posted on Youtube. Her appearance in the trailer earned her a number of death threats, and she took Google (the owners
of Youtube) to court to force them to take down the clip, claiming
that she owned the copyright in her performance. She lost at first
instance, but won on appeal, with Judge Alex Kozinski giving the lead judgment in that first appeal.
 |
| Cindy Garcia in a scene from the trailer |
This decision was
widely criticised, not only for its idiosyncratic interpretation of the
law, but because of the implications of it for movie making in general. If
the decision of the Appeal Court was allowed to stand, any actor in a
feature film could theoretically hold the producers to ransom by
withholding permission to use their specific performance.
Unsurprisingly the case was appealed to the full eleven strong panel
('en banc') of judges of the Ninth Circuit, and their decision was
handed down today.
The latest appeal court opinion reverses the earlier decision and denies Miss Garcia any copyright in
her performance. What's more the court was fairly critical of Judge
Kozinski's decision. In particular they were critical of Kozinski's readiness to grant an injunction against Google, despite
the fact that this action appears to have constituted prior restraint
contrary to the First Amendment. Kozinski, who was also one of the eleven en banc panel of judges, did not take this criticism
with a shrug of the shoulders, but instead launched into a robustly worded dissent, in defence of his earlier decision. At times his argument borders on the
bizarre: he considers (page 35) that since the majority en banc decision says that an
individual actor does not have a copyright stake in a scene in which
he or she appears, therefore there is no copyright in the scene
whatsoever. He then extends this argument to say that anyone (a 'dastard') who then
obtains the footage of the scene before the final film is edited,
could then publish it with impunity because at the rushes stage, no
copyright exists. He then implies that the en banc decision is based
more on the economic interest of Google than on the law "In its
haste to take internet service providers off the hook for
infringement, the court today robs performers and other creative
talent of rights Congress gave them. I won't be a party to it."
But Judge Kozinski does
not have a monopoly in dubious reasoning. The lead en banc decision,
written by Judge Margaret McKeown, contains the statement "Garcia's
copyright claim faces yet another statutory barrier: she never fixed
her acting performance in a tangible medium ...". Most UK law
students will be aware of a seminal English copyright case from 1900
known as Walter v Lane, in which the House of Lords ruled that the author
of an idea does not necessarily need to be the person who actually
records the idea in order for copyright to exist in the work. In that
particular case, Lord Roseberry, a politician of the time, was making an ex tempore
speech, but because a journalist from the Times newspaper was present and recorded the speech
in shorthand, copyright therefore subsisted in the speech. It seems that US
jurisprudence, at least in the Ninth Circuit, has yet to establish
this particular piece of precedence. Clearly Miss Garcia's performance was fixed (how else can it have appeared on Youtube?) and it seems bizarre to think no copyright exists in the video itself. That is an entirely separate matter from whether Miss Garcia has standing to bring a claim of infringment.
But for all these
quirks, the en banc decision does appear to be well grounded in law,
and also in common sense. Let's see if the US Supreme Court is asked to
look at the case!
No comments:
Post a Comment