Why is it a strange case? Well, it is not everyday that a copyright infringement lawsuit is predicated on the putative copyright owner’s fear of death threats due to her fraudulently procured authorial contribution to a work viewed by a religious community as blasphemous. But it is also a strange day when Google, rather than simply taking down a video in response to a DMCA request, decides to take the hard route and challenge the takedown request in federal court. And it is also a strange day when Google “Warns of Harm to Hollywood.” Throw in an absentee essential party (the putative copyright holder in the controversial film) and give all this to an exceptionally creative jurist like Chief Judge Kozinski. It’s no surprise that we get a strange and controversial opinion.
Much of the internet commentary I have seen on the decision has been negative. Eric Goldman had some initial thoughts (“shockwaves through the internet community”) and Rebecca Tushnet has offered a long, sad blow-by-blow account of both the majority opinion and the dissent in the case. There are numerous other accounts offered elsewhere–just Google for them. Notably, though, the majority of the IP experts that I know think the case was decided correctly–on its very strange facts. See, e.g., David Nimmer and Jay Dougherty quoted here.
Before offering my defense of a part of the opinion, I want to state that, as far as the relief granted goes — and especially with respect to the gag order imposed on Google — I am not a fan of this case. I’m also not a fan of the majority’s one-line First Amendment analysis. And there are clearly some very loose procedural and factual things afoot here: there are a multitude of “no evidence” assertions by the majority. However, all that said, there is one part of this opinion that seems more or less okay to me: I think it is plausible for an actor like Garcia to own a copyright interest that is infringed by a film that includes her fixed performance.
Chief Judge Kozinski puts it this way: “[Garcia] claims that her performance within the film is independently copyrightable and that she retained an interest in that copyright.” However, I have now heard various people reject that possibility out of hand, arguing that a film has to be one work, not two. But you can have two works present in one copy. A work can incorporate many other works. Imagine a film about a concert at an art museum. Studios have whole departments that clear the incorporation of prior works into new films. The confusion over Garcia seems to be based on the simultaneous fixation of two works in one copy.
It seems pretty clear that this is possible. I want to illustrate how it is possible with a set of hypotheticals that will culminate with a rather bizarre and unrealistic fact pattern. As a rule of thumb, I do not think bizarre hypotheticals work well as a rhetorical strategy — so kids, please don’t try this at home. But anyway, here goes:
Let’s say a hypothetical actor, we’ll call him Adam, is preparing a performance of Oberon’s soliloquy from A Midsummer Night’s Dream — “I know a bank where the wild thyme blows.” He sets up a camcorder, hits the button, and he records his dramatic performance of the (public domain) verses. It’s sort of like what you see here:
Does Adam have a copyright in the resulting audiovisual work? Sure thing. No problem.
So then let’s say Adam sets up the camera and Adam asks Brenda, Adam’s friend, to press the button on the camcorder at the appropriate moment, recording Adam’s performance of the lines. Still no question, I think, that Adam is the sole author of the work. Brenda’s pressing a button at the direction of Adam does not make Brenda the author of the audiovisual work.
Okay, now let’s say Adam is on a stage, Brenda is hitting the button at the back of an auditorium, and — ”here’s where the hypothetical goes a bit non-linear –1) the stage is divided in two by a large, but thin barrier, 2) Adam is wearing noise-canceling headphones (to enable Adam to concentrate and focus), 3) the camcorder is recording the entire stage, not just Adam’s half, and 4) Adam is reciting a dialogue between Oberon and Titania but is pausing where Titania speaks and is only reciting Oberon’s lines. These are strange facts, but I think nothing here should change the outcome of the prior hypothetical: Adam has a copyright in the resulting audiovisual work.
So now, one more tweak (you may have seen this coming): Carly, another actor, is, unbeknownst to Adam, doing the same thing as Adam on the other side of the stage divider, except that Carly is reciting and performing Titania’s lines. Carly is also a friend of Brenda and has also requested that Brenda fix the work by pressing the button on the camcorder–so Brenda is fixing two separate works in one copy. To be clear: Adam does not know Carly is performing and Carly does not know Adam is performing (that’s why we have the divider and the headphones).
The resulting work combines both performances and looks like a scene that features Oberon and Titania conversing with each other (though there’s probably not much chemistry!). When Adam and Carly review Brenda’s fixation, it is sort of like the Reese’s Peanut Butter Cup situation, but neither performer is happy with the combination. Neither Adam nor Carly intended to create a joint work, so they did not. Instead, each intended to have a solo performance fixed, which they did. So what looks like one work is actually two works created and captured in one (simultaneous) fixation.
Under the current law, I don’t see why both of these works shouldn’t be protected by copyright. I don’t see why the inclusion of Carly’s work in Adam’s fixation, and vice versa, ought to defeat the copyright interest of the other author. This fact pattern will create many downstream complications, but I don’t see anything in the statute that forecloses it as a possibility.
So, that’s all I wanted to say. And I don’t think it is very controversial! But let me anticipate a few potential objections.
1) Your bizarre hypothetical actually has nothing to do with the facts of Garcia.
Agreed. All I wanted to establish is that it seems possible that two (or more) independent copyrights might be fixed simultaneously in the same copy. Maybe I could have done this much more simply–e.g., by pointing to the case law on interviews.
2) What about the Copyright Office’s refusal to issue a registration to Garcia?
The Copyright Office’s position is understandable. If I worked at the Copyright Office, I’d be rather confused if both Adam and Carly attempted to register separate copyrights and deposited identical copies of Brenda’s recording. That’s basically how I read the Copyright Office refusal of Garcia’s attempted registration: I’m sorry, but you don’t own the copyright in the film and, to the extent we actually understand what you’re trying to do, we’re not going to do that because we have never done that before. (I’m paraphrasing.)
3) But this is a joint work!
Well, yes, Garcia did indeed want to merge her authorial contribution into the joint work of Desert Warrior. For that reason, the dissent, and several commentators, have stressed that this is really a case about joint works and the Aalmuhammed opinion should control the outcome.
Garcia’s argument, though, which is accepted by Chief Judge Kozinski, is that she never intended her authorial contribution to be merged into Innocence of the Muslims, a movie which was not Desert Warrior. Hence, since Desert Warrior was not made, she should be able to “de-joint” her contribution to the project, refusing to merge it into the film that she never agreed to make.
This is clearly the bit of the case that has Hollywood worried — doesn’t the Garcia ruling essentially eviscerate the Aalmuhammed ruling and make everyone who contributes to a film (without a work for hire) capable of upsetting the collective apple cart with an infringement claim?
Well probably not. According to the opinion, the facts supporting this ruling will be “extraordinarily rare.” Here’s how Chief Judge Kozinski limits the case’s reach:
The film differs so radically from anything Garcia could have imagined when she was cast that it can’t possibly be authorized by any implied license she granted Youssef. A clear sign that Youssef exceeded the bounds of any license is that he lied to Garcia in order to secure her participation, and she agreed to perform in reliance on that lie.
So Garcia’s claim is a narrow exception to the general rule that an actor has no standing to complain about the edited final version of a film — in fact, Garcia may only apply in situations where an actor is fraudulently induced to contribute to a film. (Pace the facts in Aalmuhammed.)
4) But now every random passerby in a video has a copyright interest!
Again, I don’t think so. Apparently, Garcia spent three and a half days filming. Kozinski thinks Garcia is a very legit actor/author and he cites, in support of her claim, to Stanislavski. So I don’t read the Garcia opinion to say that making breakfast, walking funny, or mugging for a camera is authorship.
That said, I actually like the fact that a minor contribution to a major project is being recognized as authorial and protected. Recall that copyright (under the 1976 Act) subsists upon the fixation of creative expression. There is no requirement of registration and only a minimal requirement of creativity. This means — as David Post put it recently — everything (more or less) is copyrighted! Well, not exactly, but we are certainly surrounded every day by a myriad of unregistered and commercially insignificant copyrights.
When micro-copyrights threaten to interfere with industrial production and distribution, joint work cases like Aalmuhammed v. Lee and Thomson v. Larson brush minor contributors under the rug, centralizing copyright authorship in the hands of the major players. Dominant authors win and non-dominant authors lose. In a broad sense, work-for-hire and joint authorship allow the big money to prevail against the rank-and-file laboring artists. Having spent most of the last year focusing on the myriad contribution of minor amateur-rank authors to online UGC platforms, I find that doctrine rather troubling. I can see, very clearly, why both the content industry and the tech industry would be happy if amateur authors and their micro-copyrights would just go away. Tiny bits of amateur and component authorship, when legally recognized, act like sand in the gears of industrial content production and distribution. Google seems to be worried that more copyrights of a smaller sort will lead to more notice-and-takedown activity on YouTube and elsewhere, cutting into the platform’s bottom line.
But, as the opinion explains, “nothing in the Copyright Act suggests that a copyright interest in a creative contribution to a work simply disappears because the contributor doesn’t qualify as a joint author of the entire work.” And, as David notes, this is the bed that the content industry made for itself. Congress opted in the 1976 Act (and since) for the biggering and biggering of copyright entitlements. If the claim is that the Garcia opinion creates an anti-commons — well, that’s precisely the anti-commons that the maximalist lobbyists have demanded. Sure, it would probably be easier for Google to deal with Hollywood if individual authors had fewer rights. But isn’t copyright supposed to protect authors? And wasn’t granting individual authors (not industries) control over the exploitation of their works the whole point of the Statute of Anne? I often feel like big tech and big content today are joining forces against authors, seeking to have copyright regress to an earlier era. It’s worth noting, I think, that SAG-AFTRA and lawyers representing talent have no problem with this ruling.
Despite the open invitation, I won’t be filing an amicus brief in this case, in part because I think the ruling has other problems. (And I should add that Chief Judge Kozinski’s throwaway lines about amateur “schmucks” who are neither actors nor movie moguls don’t resonate with me.) But on the isolated question of whether Garcia could potentially claim copyright in her authorial contribution, I can’t say I have a problem with this case.
(X-posted at RIIPL)