Actors Unions Come Out In Support Of Separate Actors Copyright To Support Innocence Of Muslims Actress

Copyright

from the that's-not-how-copyright-works dept

We’ve been covering the Garcia v. Google case for a while. What started out as a crazy case that pretty much everyone assumed was destined to go nowhere got weird in a hurry earlier this year when Judge Alex Kozinski upended decades of settled copyright law by deciding that an actor or actress might have a separate copyright interest in his or her performance in a film. The case involved Cindy Lee Garcia, an actress who was pretty clearly duped into performing in a video which became known as “Innocence of Muslims,” a 13-minute film (which was called a trailer, though it’s unclear if a full movie was ever actually planned or exists) that became quite controversial (and was, probably incorrectly, blamed for violence in the Middle East). Garcia was reasonably upset about her role in the film, and sought to have the entire thing pulled offline. She tried a few different ideas before settling on copyright, which made no sense at all, because actors and actresses are not considered to have a copyright in their own performance (remember, the copyright is in the “fixing” of the work).

When the original ruling came out, we noted it was a rare case where both Google and the MPAA might actually agree on a copyright issue, but it was not to be. The MPAA has completely sat out this ordeal, preferring to let others handle it. We’ve heard from multiple sources that the MPAA decided not to get involved because they didn’t want to make any statements that could be seen as challenging WIPO’s Beijing Treaty from a couple of years ago that tried to establish a new “audiovisual right” for actors, related to copyright.

Of course, while the MPAA is sitting it out, it appears that actors are not. Instead, they’ve actually decided to side with Garcia now that the 9th Circuit has finally decided to rehear the case, with a full (en banc) slate of judges. A bunch of amicus briefs have been filed (including one by us), in support of the fairly basic points that (1) no, actors don’t have their own copyright in their performances and (2) blaming intermediaries is both against Congress’ intentions and a very, very bad idea.

However, the single amicus brief on the other side, in support of Garcia comes from a variety of actors unions, led by the Screen Actors Guild and Actors Equity, claiming that Garcia’s version is dead on. It’s interesting to note that included in the brief is also the American Federation of Musicians, suggesting that a ruling on this matter could go well beyond just actors. Still, the actors’ brief here pulls off an amusing balancing act of claiming that of course an actor can and should have a separate copyright interest, but that issue will almost never come up (other than, say, the present case).

The question at issue here is whether an actor?s performance in a motion picture can be an original work of authorship and, if so, whether the actor can hold a copyright, separate from the copyright in the whole motion picture. For the reasons described herein, the answer to both questions is yes, although the occasions on which this arises will be extraordinarily rare and completely outside the custom and practice of the audiovisual industry of the United States and many other countries.

The basic argument is that actors add a lot of their own creativity to a role. No one denies this. But they then take it further in arguing that originality automatically should lead to copyrightability. That’s the nonsensical part. For example, the following paragraph makes no sense at all:

If an actor did not add sufficient originality to a performance, which actor a studio hired simply would not matter. The Academy Awards, Golden Globes, and Emmy acting categories and the Screen Actors Guild Awards would have no relevance. But it is indisputable that is not true; clearly actors are valued for their performance and the originality they bring to their respective roles. The actor imbues the lines with original expression that conveys emotion and brings the character to life.

No one denies that actors can add originality to a performance. But originality alone does not mean something is covered by copyright.

Separately, the actors’ brief argues that Garcia’s work was substantial enough to be covered by copyright, but again, the reasoning is suspect. They challenge the idea that her 5 seconds on screen is too short to be covered by copyright, because the filmmaker recorded a lot more. But that makes no sense, because the copyright claim is in the recording that Garcia wants taken down, not on everything he possibly recorded.

Google and its supporters argue, in part, that Garcia?s performance comprises approximately five (5) seconds of a larger motion picture and, therefore, is not worthy of protection. However, this ignores the fact that her entire performance was substantially longer, edited by Nakoula into what has been called a ?trailer? for a larger motion picture. According to Garcia?s Complaint, her performance was spread over five (5) full and one partial script pages. First Amended Complaint, Exhibit A. A general rule of thumb provides that each script page represents approximately one (1) minute of screen time…. Additionally, Ms. Garcia worked for three and one-half days, indicative of more than five seconds of footage. Declaration of Cindy Lee Garcia…. Accordingly, while Nakoula may have used only a few seconds of Garcia?s performance, the full performance may not have been so de minimis as to be unprotected.

But, uh, the claim is only on the part that is shown online, because that’s the basis for the takedown request. All of the rest of her performance is totally irrelevant here, because that’s not what’s claimed to be infringing. The only issue here was the clip on YouTube, which included merely 5 seconds of Garcia’s time.

Finally, the actors insist that this issue will rarely come up in other circumstances because most “real” videos are made by sophisticated parties (i.e., MPAA studios) who contractually stamp out the possibility of something like this. Except, of course, more and more video works are not made in this manner. But the actors brush it off, claiming that all those other things, the piffle on YouTube and in reality TV doesn’t matter because, tsk tsk, that stuff can’t possibly be creative enough for copyright:

We appreciate that Google and some amici may be concerned that user generated content (?UGC?), documentaries, reality shows, game shows and news programs may not consistently adhere to well-established customs and practices of the audiovisual industry. However, programming that relies heavily on unscripted interviews and similar contributions will not be impacted by acknowledging copyrights in performers? creative contributions because such contributions will typically lack the requisite ?modicum? of creativity required to be considered an ?original work of authorship.?

Got that? Short works, of 5 seconds or less absolutely are creative works deserving of copyright… unless they’re “user generated content or reality TV. Notice the actors’ biases seeping in? “Professional actors” deserve copyright, and forget everyone else.

The actors also brush aside any concern that new takedown requests from actors will burden tech companies, because apparently, if Google can handle it, so can the rest of the tech industry.

On the technology side, Google responds to tens of millions of copyright takedown requests on a monthly basis and has deployed a sophisticated, automated system to detect and take down infringing material from YouTube. While the number of takedown requests directed to its YouTube service is not publicly available, Google does report figures related to its other services. For example, in the past 30 days ending December 5, 2014, Google?s search engine received and responded to nearly 36 million take-down notices; the company has received and responded to as many as 11 million take-down requests in one week for its search engine.

Yeah, that’s Google. Think of the startups that can’t process that kind of takedown request volume. The actors do not think about that at all. Hopefully, the court sees through these weak arguments next week when it hears the case.

Filed Under: actors, alex kozinski, cindy garcia, cindy lee garcia, copyright, innocence of muslims
Companies: google, mpaa, sag, sag-aftra