Monday 18 May 2015

Not Laughing all the Way to the Banc?

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!

More on the story from Techdirt here
and the Ninth Circuit's judgment here.

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