Garcia v. Google: Works Within Works

Garcia v. Google is a strange case.  If you’re not familiar with the basic facts, here is NPR’s summary. The Ninth Circuit’s opinion can be found here (courtesy of the EFF).

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.

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The Player-Authors Project

This probably falls under the category of “self-promotion,” but maybe it also explains why I’ve been quiet on Madisonian for the past few months.  I spent the last year working on an intensive empirical research project funded by the National Science Foundation.  I was leading a team of law students to examine the copyright implications of a variety of user-generated content platforms. Our motivation for the research was what we perceived as a gap in the literature. There have been numerous discussions of the phenomenon of UGC, but most legal accounts have been premised on hand-picked examples. There’s nothing wrong with anecdotes, but we thought it would be better to have a statistical sense of UGC. The main question we asked was simply: “What are people actually doing?” Continue reading

Speaking of empirical things… Player-Authors Project Initial Results

For me, 2013 has been a pretty empirical year — my main project has been the Player-Authors project, which is an empirical investigation of online creativity, with a focus on creative participation in video games.  A recent Rutgers press release about the project is here. At this point, we are starting to collect and analyze the data from one of our surveys.  The survey was designed to ascertain player perceptions of user-generated content in games. While we are still finalizing the results, here are some of the initial findings:

  • We had over 400 valid responses
  • The survey participation skewed substantially male (over 80%)
  • The median age of respondents was roughly 30 years old
  • The PC was respondents’ most popular and preferred gaming platform
  • The Sims was respondents’ most played game among the available options
  • Respondents shared UGC on YouTube more often than on other listed platforms
  • The most common motivation of respondents for creating content was intrinsic pleasure (enjoyment of creativity) and the least common motivation was financial (to make money)
  • The most common UGC practice of respondents was making new objects within games
  • The least common UGC practice was costumes and crafts
  • Respondents generally favored the genre of action/arcade/adventure games the most — racing and sports games were the least popular
  • Roughly half of respondents stated that they had created “remix” UGC
  • The most common reference material for in-game “remix” UGC was “other video games”
  • The most common form of UGC creation among respondents was “maps/scenarios”; the least commons was “music/sound effects”
  • Minecraft was the most popular platform for UGC sharing among respondents; Second Life was the least popular.
  • The same was true for downloading: Minecraft was most the popular platform (among those listed) and Second Life was least popular.
  • Respondents had a range of opinions on the value of UGC.  Most respondents thought that creative tools and the ability to access player-created content were important to their enjoyment of games.  However, many players felt that UGC was not so important to their decision to purchase a particular game.

I’ll be talking about video games and interactivity at IPSC in New York next week — I may get a chance to say a little bit about this project.  One of the interesting questions about video games and copyright law is how their interactivity as a medium influences their status as protected works.  Bruce Boyden, Tyler Ochoa, and Dan Burk have all written about this, and I have some thoughts about it in my IPSC paper.  Obviously, when the game itself becomes an authorial tool, that ought to have some implications for copyright law.

Lord of the Mockbusters: Applying the Rogers Doctrine to Hobbit(tm)

Suppose you’re making or producing a film and you realize that, with the release of a new Tolkien-based movie, The Hobbit: An Unexpected Journey, many consumers are going to be in the mood for purchasing audiovisual content featuring small people and fantastic settings.  You’d like to be able to profit from that enthusiasm, making a movie about small people and monsters and associated elements of the fantasy genre that Tolkien helped to  create.  There have been plenty of these sorts of movies — see, e.g., from the 1980’s: Time Bandits, Willow, The Dark Crystal. So clearly the Tolkien estate doesn’t have exclusive rights to movies featuring magic, elves, fantasy monsters, and small people.

But does it have the exclusive right to movies in that genre that include the word “Hobbit” in the title?  This is, of course, a question of trademark law.  And the preliminary answer to that question is, apparently, yes.  See the reportage here. In short, the makers of a film entitled “Age of Hobbits” were recently ordered not to distribute their film on the basis that consumers could become confused about the origins or sponsorship of the movie, thinking that the film had some relationship with Tolkien’s books, Peter Jackson’s Lord of the Rings films, and the associated “Hobbit” marketing and merchandising empire.

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Christie’s Halloween Order and the Sphere of Halloween Justice

James Grimmelmann just noted New Jersey Executive Order 105 (Oct. 31, 2012):

NOW, THEREFORE, I, CHRIS CHRISTIE, Governor of the State of New Jersey, by virtue of the authority vested in me by the Constitution and by the Statutes of this State, do hereby ORDER and DIRECT:

1. Celebrations of Halloween scheduled for October 31, 2012 in all parts of New Jersey shall be held on Monday, November 5, 2012.

And wonders if this is a law in the formal sense.

My comment:

Was wondering about this yesterday morning too. Seems to me like the state overstepping the bounds of its authority in some ways. Re Oct 31, yes, you can say “no Halloween” (meaning “no mass wandering of kids on the street at night”) as the state — that’s a public safety issue potentially. (Not saying it really is in all cases, but as a matter of bright line rules and executive authority, okay — not so different from saying there’s a curfew and/or ordering an evacuation of shore zones.)

But rescheduling a non-state holiday for a new date? No, that’s just weird — Governor Christie doesn’t get to reschedule Halloween. However, like you said, to the extent Nov 5 is the suggested new date, that solves coordination problems, so maybe it’s not all bad for Christie to suggest everyone go with next Monday.

Does anyone disagree with the bolded part?  Does anyone think Governor Christie actually has the authority to say “celebrations of Halloween… shall be held on Monday, November 5”?  It strikes me as a First Amendment violation at the least, but it’s certainly not a church/state question despite the religious origins of the holiday.  And it isn’t about a specific organization’s internal rules either.  It’s more of a “forced speech” issue, I would think, as well as an abridgement of the freedom to celebrate Halloween on, say, today.

For what it’s worth, I’ve talked to several people who have violated this order and similar municipal orders in the post-Sandy Northeast.  It’s fascinating to hear these folks explain why they and their community defied the various mandates to reschedule Halloween.  Interesting rule of law stuff, to be sure.

Update: Apparently, even local government in New Jersey doesn’t feel any obligation to fall in line:

On Wednesday, the Mercer County municipalities of Trenton, Hopewell Borough, Hopewell Township and Pennington affirmed they will celebrate Halloween on Saturday, Nov. 3, not Nov. 5 as Christie ordered.

Why: Today is more of a leisure day and with daylight savings, it’ll be dark early on Monday.