Horrific Appeals Court Ruling Says Actress Has Copyright Interest In 'Innocence Of Muslims,' Orders YouTube To Delete Every Copy

from the bad-on-multiple-levels dept

We've been following the saga of Cindy Garcia for quite some time now. She appeared in the now infamous YouTube film "Innocence of Muslims" that attracted worldwide attention after it was blamed for various riots and fatwas from extremist Muslims, because the horribly scripted, produced and acted film is clearly insulting to the religion. While the video had been out for months prior to the controversy, once it started generating so much attention, Garcia tried pretty much every trick in the book to make the movie disappear. She sued both the producer and YouTube in California state court. That failed. Then she moved on to federal court, where she claimed that the movie violated her copyright, an argument that is and has always been laughable. We assumed, naturally, it would fail quickly -- and it did. However, she and her lawyers kept arguing, and in a somewhat shocking -- and incredibly troubling -- move, the 9th Circuit appeals court has ruled in her favor, in a ruling written by Judge Alex Kozinski.

We've written about Kozinski plenty of times in the past. He's one of our (and many court watchers') favorite judges for his willingness to speak in a straightforward manner and his similar proclivity to make jokes and poke fun at himself. While we often do agree with him, in the cases where we don't, we often find his reasoning truly perplexing, and that is absolutely true in this case. Kozinski seems to tie himself up in a whole variety of questionable knots to find that (a) Garcia has a copyright interest in the film and (b) Google should be forced to take down every instance of the film. The ruling creates massive problems for both basic copyright law and the First Amendment. And it's actually a case where -- believe it or not -- Google and the MPAA might even be on the same side once Google likely asks both the 9th Circuit to review and/or the Supreme Court to consider the case as well. A ruling that would put both Google and the MPAA on the same side of a copyright issue? Yes, that's going to be a strange ruling indeed.

The key issue is that Garcia claims her performance is independently copyrightable from the film. This claim is preposterous. No film has ever worked that way, where the actors could make a claim to a separate copyright for each performance. In fact, just a couple years ago, a bunch of countries signed a new treaty to give actors a kind of copyright-like right in their roles in certain cases, which more or less explicitly recognizes that actors do not get to copyright their own performance. Furthermore, as far as I know, the US hasn't done anything to implement the details of that Beijing Treaty (nor has it even ratified it), so it's not like any of those new rights should apply yet, and it doesn't appear that Kozinski relied on any of them anyway.

Instead, Kozinski goes through a detailed explanation for how each actor in a film may be able to claim some sort of copyright in their own performance, because of the creative elements they add to it.
An actor’s performance, when fixed, is copyrightable if it evinces “some minimal degree of creativity . . . ‘no matter how crude, humble or obvious’ it might be.” .... That is true whether the actor speaks, is dubbed over or, like Buster Keaton, performs without any words at all. Cf. 17 U.S.C. § 102(a)(4) (noting “pantomimes and choreographic works” are eligible for copyright protection). It’s clear that Garcia’s performance meets these minimum requirements.

Aalmuhammed isn’t to the contrary because it does not, as the dissent would have it, “articulate[] general principles of authorship.” Dissent 25. Aalmuhammed only discusses what is required for a contributor to a work to assert joint ownership over the entire work: “We hold that authorship is required under the statutory definition of a joint work, and that authorship is not the same thing as making a valuable and copyrightable contribution.” ... Aalmuhammed plainly contemplates that an individual can make a “copyrightable contribution” and yet not become a joint author of the whole work. Id. For example, the author of a single poem does not necessarily become a co-author of the anthology in which the poem is published. It makes sense to impose heightened requirements on those who would leverage their individual contribution into ownership of a greater whole, but those requirements don’t apply to the copyrightability of all creative works, for which only a “minimal creative spark [is] required by the Copyright Act and the Constitution.”

[....]

This doesn’t mean that Garcia owns a copyright interest in the entire scene: She can claim copyright in her own contribution but not in “preexisting material” such as the words or actions spelled out in the underlying script. 17 U.S.C. § 103(b);.... Garcia may assert a copyright interest only in the portion of “Innocence of Muslims” that represents her individual creativity, but even if her contribution is relatively minor, it isn’t de minimis.... We need not and do not decide whether every actor has a copyright in his performance within a movie. It suffices for now to hold that, while the matter is fairly debatable, Garcia is likely to prevail.
However, as the dissenting opinion points out, this is hogwash. Actors don't have any copyright interest in their performance and that's clear from the law and this history of copyright:
Congress has listed examples of copyrightable works, like architectural works, motion pictures, literary works, and pictorial or sculptural works. Id. The nature of these works is significantly different from an actress’s individual performance in a film, casting doubt on the conclusion that the latter can constitute a work....

Section 101 of the Act is also instructive, because it differentiates a work from the performance of it. It defines “perform a ‘work’” to mean “to recite, render, play, dance or act it.” 17 U.S.C. § 101 (emphasis added). Given this provision, it is difficult to understand how Congress intended to extend copyright protection to this acting performance. While Congress distinguishes the performance from the work itself, the majority blurs this line. Its position contemplates something very different from amalgamating independently copyrightable interests into a derivative work. See id. at § 103(b).

Consistent with section 101, section 102(b) outlines that which is not given copyright protection. It states: “In no case does copyright protection for an original work of authorship extend to any idea, procedure, process, system, method of operation, concept, principle, or discovery, regardless of the form in which it is described, explained, illustrated, or embodied in such work.” An acting performance resembles the “procedure” or “process” by which “an original work” is performed. Id. Therefore, “[i]n no case does copyright protection” extend to an acting performance, “regardless of the form in which it is described, illustrated, or embodied in” the original work.
Kozinski then argues that Garcia's performance doesn't qualify as a work made for hire (which does seem slightly bizarre, but the work made for hire rules are fairly specific and might not apply here). However, even here, Kozinski makes a troubling statement that may be a dangerous precedent. In arguing that the nutty guy behind the film, Mark Basseley Youssef, is not "in the business of film making," Kozinski states:
There’s nothing in the record to suggest that Youssef was in the “regular business” of making films.... He’d held many jobs, but there’s no indication he ever worked in the film industry. And there’s no evidence he had any union contracts, relationships with prop houses or other film suppliers, leases of studio space or distribution agreements. The dissent would hold that Youssef was in the “regular business” of filmmaking simply because he made “Innocence of Muslims.” But if shooting a single amateur film amounts to the regular business of filmmaking, every schmuck with a videocamera becomes a movie mogul.
Except, um, no. In an era in which people can come from nowhere and make amazing films -- then, yes, "every schmuck with a videocamera" can be "in the business of making films." There is nothing in copyright law that says you have to be a "movie mogul" to qualify, and it's troubling both that Kozinski implies that only "movie moguls" get to make use of the works made for hire doctrine and that small independent first-time filmmakers not entrenched in Hollywood somehow have fewer rights.

As for the "implied license" that Garcia gave to Youssef by performing in his film, Kozinski makes yet another highly problematic argument, that because Youssef changed her performance, it went outside the license. Even after admitting that such a ruling would be problematic in that it "could allow an actor to force the film's author to re-edit the film--in violation of the author's exclusive right to prepare derivative works" or that "the actor could prevent the film's author from exercising his exclusive right to show the work to the public," Kozinski still seems to think that Garcia can do exactly that in this case, because the film turned out to be quite different from what Garcia was told it would be.
Garcia was told she’d be acting in an adventure film set in ancient Arabia. Were she now to complain that the film has a different title, that its historical depictions are inaccurate, that her scene is poorly edited or that the quality of the film isn’t as she’d imagined, she wouldn’t have a viable claim that her implied license had been exceeded. But the license Garcia granted Youssef wasn’t so broad as to cover the use of her performance in any project. Here, the problem isn’t that “Innocence of Muslims” is not an Arabian adventure movie: It’s that the film isn’t intended to entertain at all. 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.
While he notes this situation "will be extraordinarily rare," you can pretty much bet that plenty of actors who are later upset with how a director/editor handled their performance in films will cite this ruling in the inevitable lawsuits. This ruling is going to lead to a ton of really ridiculous lawsuits from actors upset about how a filmmaker portrays them in a final cut of a film.

The next problematic argument is that, given all of this, Garcia still needs to show irreparable harm from keeping the video up. And yes, as Kozinski notes, death threats do seem like a form of irreparable harm. But, the "harm" has to result from the infringement, since it's a copyright claim that she's bringing. Kozinski is somehow convinced that's the case, though his explanation doesn't seem to actually provide any explanation.
Despite her understandable focus on the threats against her life, Garcia has brought a copyright action. Therefore, she needs to show that the harm she alleges is causally related to the infringement of her copyright.

She’s made such a showing. Youssef’s unauthorized inclusion of her performance in “Innocence of Muslims” undisputedly led to the threats against Garcia.
That seems like a huge stretch, and one totally unrelated to the copyright issue, again setting a dangerous precedent for future copyright abuses.

Then there's the simple fact that taking the film off YouTube now doesn't seem likely to stop people from (a) knowing the film exists or (b) knowing that Garcia was in it. Yet, Kozinski again seems to find this argument compelling.
Garcia has shown that removing the film from YouTube will help disassociate her from the film’s anti-Islamic message and that such disassociation will keep her from suffering future threats and physical harm. Although Google asserts that the film is so widespread that removing it from YouTube will have no effect, it has provided no evidence to support this point. Taking down the film from YouTube will remove it from a prominent online platform—the platform on which it was first displayed—and will curb the harms of which Garcia complains.
On to the basic First Amendment issue. As the dissent points out, even given all of this, ordering Google to pull down the entire video is classic prior restraint. But Kozinski brushes that aside by arguing that it's okay because this is copyright infringement.
The problem with Google’s position is that it rests entirely on the assertion that Garcia’s proposed injunction is an unconstitutional prior restraint of speech. But the First Amendment doesn’t protect copyright infringement.
The dissent points out that Kozinski is wrong, in part because the court never even rules that there is copyright infringement going on here, just that Garcia may have a copyright interest in her acting performance (something the dissent disagrees with entirely). But even if we accept Kozinski's interpretation, just because Garcia may have a copyright interest, no infringement has yet been shown, and thus issuing the takedown is prior restraint in violation of the First Amendment.

If all of this wasn't troubling enough, Kozinski made things even worse. He not only issued the order a week ago to Google to remove all copies of the video (and prevent any future uploads -- hello prior restraint...) but also issued a gag order forbidding anyone to talk about this until today, once the order was out. In other words, not only did the court order the film censored, but it put a gag order on anyone revealing that the film had been censored, which raises yet another First Amendment issue, which hopefully Google will appeal.
Google, Inc. shall take down all copies of “Innocence of Muslims” from YouTube.com and from any other platforms under Google’s control, and take all reasonable steps to prevent further uploads of “Innocence of Muslims” to those platforms. Google shall comply with this order within twenty-four hours of the issuance thereof.

Neither the parties nor counsel shall disclose this order, except as necessary to the takedown process, until the opinion in this case issues. This order will remain in effect until such time as the district court enters a preliminary injunction consistent with our opinion.
Almost everything about Kozinski's ruling here is troubling. The copyright interpretation just seems very far out of bounds with just about everything having to do with copyright law. It will create tremendous problems for the film industry. The First Amendment implications of both the takedown and the gag order are similarly troubling. Hopefully, either the full 9th Circuit will rethink this issue, or the Supreme Court will take an appeal and set the 9th Circuit straight.




Reader Comments (rss)

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    silverscarcat (profile), Feb 26th, 2014 @ 12:42pm

    I suspect...

    That the judge is being controlled by aliens or something.

     

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    Anonymous Coward, Feb 26th, 2014 @ 12:42pm

    uh oh. borat's gonna be in trouble

     

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    Anonymous Coward, Feb 26th, 2014 @ 12:48pm

    I haven't RTFA yet, but I have read through the relevant portions of the majority opinion, and it actually makes pretty good sense (with some potential problems).

    It is not "hogwash" to hold that an actor's performance is not copyrightable. That is in keeping with the fundamental principles of copyright law.

    The only questionable bit is whether that performance can be subject to a separate copyright and was not part of a joint work. The court acknolwedges that, normally, the actor's performance would be part of a joint work, but that the *evidence* in this case did not support that conclusion.

    I question that, but it make this case inapplicable to most other movie cases.

     

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    Anonymous Coward, Feb 26th, 2014 @ 12:50pm

    Re:

    Ugh, too many "nots" in my hogwash sentence.

     

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    Scote, Feb 26th, 2014 @ 12:55pm

    Hollywood to the Rescue?

    My first thought on this is "Oh, crap, now we'll have to side with Hollywood copyright maximalists." The entertainment industry will have to appeal this precedent up to the supreme court with friend of the court briefs, if they can get them in. There is no way they can allow this to stand, as it means that *all* tv and movies are now copyright by the performers. A new kind of copyright maximialism, one that contradicts the interests of Hollywood.

     

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    jackn, Feb 26th, 2014 @ 12:56pm

    It is not "hogwash" to hold that an actor's performance is not copyrightable. That is in keeping with the fundamental principles of copyright law.

    yes, its hogwash.

    The producers forgot the work for hire part in her contract. That doesn't really matter, but it would make quick work of this.

     

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    jackn, Feb 26th, 2014 @ 12:57pm

    Re: Hollywood to the Rescue?

    yes, it will be hilarious!

     

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    Anonymous Coward, Feb 26th, 2014 @ 12:58pm

    Re: Hollywood to the Rescue?

    "There is no way they can allow this to stand, as it means that *all* tv and movies are now copyright by the performers."

    It doesn't mean anything like that.

     

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    Anonymous Coward, Feb 26th, 2014 @ 1:00pm

    Re:

    Agreed w/r/t the work made for hire bit. That's an easy fix that applies in most professional film situations.

    Aside from that, though, why would an actor's performance not be subject to copyright protection? As Judge Kozinski notes, choreography and pantomime is subject to protection, and an actor's body movement is his or her own original expression in most cases.

     

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    Anonymous Coward, Feb 26th, 2014 @ 1:01pm

    Re:

    If you agree to act in a film you are by definition agreeing that it is a joint work. That is the nature of film unless you you act film and edit it all by yourself.

     

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    Andrew Norton (profile), Feb 26th, 2014 @ 1:02pm

    Has someone been offered a role in the film about "the innocence of muslims"? Is he trying to give himself a better negotiating technique?

    Or is he looking to undermine the asinine pro-copyright rulings by going wicked-crazy-extreme, and daring the MPAA to argue back against it?

     

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    Anonymous Coward, Feb 26th, 2014 @ 1:04pm

    Um, did the film maker actually pay Garcia for her performance(s)?

    Well, after reading through this big dissection, I've got a question that might be pretty pertinent here:

    Did the film maker actually pay Garcia for her performance(s), in full, in accord with accepted industry practices?

    Basically, I seem to recall a lot of the issue was with the film maker being a snake and basically not paying anybody (though if the cast/crew was paid through an affiliated party, that could be a little more touchy as far as the relationship between film-maker, actor, and concept of rights of ownership) which was kind of secondary to the whole "changing dialogue to make it terribly inflammatory."

    If not paid, would you think Garcia could retain a copyright ownership / interest? Some details here would be a lot more helpful than the "We usually like this guy except when he confuses us" tack that's going on here. Should be easy getting out of his chair with all that butter you've smeared on the fellow...

     

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    Zonker, Feb 26th, 2014 @ 1:08pm

    Lookout Hollywood, it seems that Mickey Rooney now holds a copyright interest in 339 movies and counting according to IMDb.

     

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    Anonymous Coward, Feb 26th, 2014 @ 1:14pm

    personally, i dont care whether this stupid cow has won the case or not! the troubling thing, which yet again these so-called better than everybody else judges do is forget or ignore the knock on effect, the consequences! i sometimes think they do this sort of thing intentionally just to stir the crap! it usually works, but it' isn't usually them that has to sort it all out afterwards or be the one to tell the previous winner they have just lost, yet again!!

     

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    Anonymous Coward, Feb 26th, 2014 @ 1:21pm

    Luckily, the Supreme Court has a habit of overturning the ninth circus.

     

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    Anonymous Coward, Feb 26th, 2014 @ 1:32pm

    Re: Re:

    I actually tend to agree with you. The opinion seems to focus on whether the parties intended the work to be *legally deemed* a joint work, rather than whether they intended to create a work that meets the factual predicates for being considered a joint work under the Copyright Act.

     

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    Anonymous Coward, Feb 26th, 2014 @ 1:34pm

    Re: Um, did the film maker actually pay Garcia for her performance(s)?

    Opinion says she was paid $500. That's sort of relevant to the implied license issue, but not the copyright ownership issue.

    This is just a big reminder: if you're producing a film, GET SIGNED WORK MADE FOR HIRE AGREEMENTS FROM EVERYBODY.

     

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    Edward Teach, Feb 26th, 2014 @ 1:35pm

    Which fundamental principles would those be?

    in keeping with the fundamental principles of copyright law.

    I'm not sure I follow. Could you clarify a bit?

    The fundamental principle as I (a non-lawyer, to be sure) understand it is that copyright is a temporary monopoly granted to increase the arts and sciences. A copyright isn't granting ownership of an idea or performance or what have you. It's to get more stuff in the public domain so that we can all stand on the shoulders of giants.

    This ruling seems to go exactly the other way. It actually decreases what's out there, taking away the giants, so to speak.

    But I'd sure be willing to hear what lawyerly doctrine, touchstone or three-pronged test applies here.

     

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    Anonymous Coward, Feb 26th, 2014 @ 1:35pm

    Re:

    The judges have to apply the law Congress writes and passes. I'd say judges *too* often try to rewrite statutes because of the consequences if they are applied as written.

     

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    Anonymous Coward, Feb 26th, 2014 @ 1:37pm

    Re:

    I would love for the Supreme Court to delve into the joint work issue (overruling parts of Aalmuhammed while their at it), but I don't think this is the case they'll choose to do it.

     

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    Internet Zen Master (profile), Feb 26th, 2014 @ 1:37pm

    Just when I thought copyright law couldn't be twisted and contorted any further, the 9th Circuit goes and turns the damn thing into a bloody pretzel.

    This ruling is so just out of the blue and downright bizarre it sounds like it came out of a bad movie!

     

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    That One Guy (profile), Feb 26th, 2014 @ 1:38pm

    Re: Hollywood to the Rescue?

    Yeah, with a ruling like this they could be in deep trouble.

    Act in a movie and don't like how your character was portrayed? File for copyright infringement. Want to bump up your contract a bit, rake in a bigger share? Threaten to file for copyright infringement.

    Hopefully they'll be able to see just how much damage a ruling like this could cause them, and put aside their differences with Google to fight back against it.

     

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    Anonymous Coward, Feb 26th, 2014 @ 1:41pm

    Re: Which fundamental principles would those be?

    A fundamental principle of copyright law is that copyright protection automatically applies to original works of authorship fixed in a tangible medium of expression.

    Unless there is *no* original expression contributed by the actor, it is reasonable to assume the actor's expression will be protected by copyright.

    The question is then who owns the copyright, not whether it is covered by copyright.

     

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    pegr, Feb 26th, 2014 @ 1:44pm

    Ms. Streisand? Your table's ready.

    Google "youtube-dl", a utility to download Youtube videos to a local mp4 file. Find one (of the likely many) remaining copies of the film still posted to Youtube. Download away and repost everywhere you can.

    Don't get me wrong. I'm not supporting the film. I'm resisting this obvious judicial overreach.

     

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    DOlz (profile), Feb 26th, 2014 @ 1:57pm

    Excellent

    Once copyright has finally paralyzed any creative endeavor maybe, just maybe even the entertainment idustries will agree it needs to be fixed.

     

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    Edward Teach, Feb 26th, 2014 @ 2:05pm

    Re: Re: Which fundamental principles would those be?

    Bah! More dissembling. You're not in a Court of Law, counselor. Make sense. Make some logical (not theatrical or rhetorical) points.

    All you've said is what courts have said is copyrightable, which has changed over time. Performances haven't traditionally been copyrighted, just the same way compilations of facts aren't in the USA, but might be in the EU.

     

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    jameshogg (profile), Feb 26th, 2014 @ 2:13pm

    I cannot believe this. What the fuck am I reading?

    Is THAT all it takes to capitulate to fascist death threats? A fucking slippery slope of copyright?

    And to THINK! All this time these Islamists were pushing for fatwas against Salman Rushdie, boycotts against Denmark, threats against South Park...

    Sorry, but I also need to stress this: has anyone else forgotten that the Obama administration caved into election pressure and disgracefully asked Google to take the video down? While Google stood its ground and refused?

    But THIS IS WHAT IT TOOK? A fucking delusional economic system with a fucking GAG ORDER TO BOOT?

    What the fucking fucking fuck? What the FUCK?

    Is there anyone now who will dare say that copyright has no slippery slopes? Is there anyone here who will now seriously claim that "ownership of expression" has any superiority over "freedom of expression"?

    What's it going to take? The absurdities are right in front of our noses.

     

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    Chris-Mouse (profile), Feb 26th, 2014 @ 2:15pm

    Re: Re: Which fundamental principles would those be?

    I would think that that would be pretty obvious. In order for copyright to exist, the work must be fixed in a tangible medium. Unless there is a written agreement to the contrary, that copyright is held by the person doing the fixing. Thus, the photographer owns the copyright to the photograph, not the subject in the photograph. The same principle applies to film. The person operating the camera owns the copyright, not the the actor in front of the camera.

     

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    Anonymous Coward, Feb 26th, 2014 @ 2:15pm

    Re: Re: Re: Which fundamental principles would those be?

    What?

    First of all, compilations of facts *can* be copyright protected in the U.S. (so long as there is sufficient selection, coordination, and arrangement of such facts).

    Second, are you aware of any cases holding that an actor's performance would not be subject to copyright protection?

     

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    Anonymous Coward, Feb 26th, 2014 @ 2:17pm

    Re: Re: Re: Which fundamental principles would those be?

    " Unless there is a written agreement to the contrary, that copyright is held by the person doing the fixing."

    Says who? Unless there is a written agreement to the contrary, the copyright is owned by the "author." The "author" is generally considered to be the person (or persons) contributing the original expression.

     

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    Anonymous Coward, Feb 26th, 2014 @ 2:19pm

    Re: Re: Um, did the film maker actually pay Garcia for her performance(s)?

    Thanks for the information. Very good all caps reminder for those in the business - actors and film makers / money people alike. Maybe the payment issue will be a pertinent fact later on, maybe not, as I do think there were other "players" involved in production that kind of muddy the waters - weren't they renting space from some unwitting church group or something? It's all a total mess which means that this Garcia case probably won't have as much ripple as this article's tilt seems to imply.

     

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    Anonymous Coward, Feb 26th, 2014 @ 2:23pm

    Re: Re: Re:

    Then this is the wrong type of case. This is a breach of contract case not a copyright case. If she was mislead about what type of film it was going to be and contracted to appear in a movie described in the contract that was different than the one that was made, she could have a case there. If that movie wasn't spelled out in the contract, which I suppose it wasn't otherwise she would have pursued that angle. It's still not a valid copyright claim.

     

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    Anonymous Coward, Feb 26th, 2014 @ 2:29pm

    Re: Re: Re: Re: Which fundamental principles would those be?

    Contributory works to a larger work created for the primary intent of contributing to that work are works for hire. That is obviously what this is. Unless there is something in her contract that spells out what type of movie it is, then it would be difficult to prove that she agreed to be in a specific film and not whatever film he was making at the time.

     

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    Anonymous Coward, Feb 26th, 2014 @ 2:35pm

    Re: Re:

    Not putting the language that explicitly states that it's work for hire in the contract doesn't mean that it isn't work for hire. It still meets the description of a work for hire. Adding that language just makes it explicit in the agreement. I suspect it was in there anyway. I suspect her claim though is that the contract is void because the film that ended up being made was a different film than she is claiming to have agreed to be in.

     

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    Bill Stewart, Feb 26th, 2014 @ 2:35pm

    Re: Work-for-hire-ness

    The article says Judge Kozinski (who I also usually agree with) addressed the "Work for hire" question, dismissing that. It's sort of the obvious claim (since presumably the producers paid the actress, though maybe there's something about the specifics of the work-for-hire rules that wasn't met, and presumably this was a small-time film where she's not getting a piece of the gross or net revenues which might affect whether she owns it.)

     

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    Leigh Beadon (profile), Feb 26th, 2014 @ 2:36pm

    Re: Re: Which fundamental principles would those be?

    The question is then who owns the copyright, not whether it is covered by copyright.

    No, the question is manifold.

    It's wrong to suggest that a performer's rights automatically emerge from the basic central principle of copyright -- while they are a form of copyright, they are established separately as related rights, precisely for the reason that the question of them being "fixed" is a difficult one.

    The US doesn't have federal performer's rights. Lots of other countries that more closely follow the Rome convention do -- but those rights are still somewhat distinct from copyright. In some cases a performer is granted the right to disallow recordings, but once a performer has authorized a recording, they lose the exclusive rights of reproduction and distribution in that copy; in other cases it's more copyright-like; in virtually all cases throughout Europe, Australia and several other areas, it's largely untested and still constantly changing due to ongoing trade agreements that all attempt to quietly alter the rules.

    So the first question is, does the performer have a standard, basic copyright according to the central definition of a fixed creative work? And I say no, because they didn't do the fixing.

    The second question then, is, do they have a related performer's right which they can assert over recordings of their performance? In many countries they would, and in some states they might be able to make a case for it, but overall: no.

    The third question, IF they had either a copyright or a related performer's right, would be who owns it -- but that question really shouldn't even be necessary here. If it is, then we're at the mercy of often-bizarre work-for-hire laws.

     

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  37.  
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    Anonymous Coward, Feb 26th, 2014 @ 2:39pm

    Re: Re: Re: Re:

    There was no written contract.

    It is a copyright case because she is claiming a copyright interest, violation of that copyright. There is a semi-contractual component, because the defendant argued he had an implied license. The court agreed, but said the use was outside the scope of that license (which is totally reasonable in this case, but wouldn't be in most cases).

     

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  38.  
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    Anonymous Coward, Feb 26th, 2014 @ 2:42pm

    Re: Re: Work-for-hire-ness

    You don't have to be paid for it to be work for hire. Hollywood gets work for hire all the time where they don't pay anybody for it.

     

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  39.  
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    Anonymous Coward, Feb 26th, 2014 @ 2:42pm

    Re: Re: Re: Re: Re: Which fundamental principles would those be?

    You might want to read up on the actual law regarding works made for hire. They are not what you think they "obviously" are.

    Something is only a work made for hire if it's created (a) by an employee in the scope of employment, or (b) subject to a written work made for hire agreement signed by the parties AND fits one of 9 special categories of works.

     

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  40.  
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    Leigh Beadon (profile), Feb 26th, 2014 @ 2:45pm

    Re: Re:

    Unfortunately, I think Kozinski got it quite wrong on the subject of choreography and pantomime. From the U.S. copyright office:

    To be protected by copyright, pantomimes and choreography need not tell a story or be presented before an audience. Each work, however, must be fixed in a tangible medium of expression from which the work can be performed.

    Now, one could make the argument that the movie made from her performance could itself serve as a tangible medium "from which the work can be performed" — but that is clearly not in keeping with the intent of the law, which is to protect pantomime and choreography that is written or scripted in some way as a work of authorship.

     

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  41.  
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    Anonymous Coward, Feb 26th, 2014 @ 2:47pm

    Re: Re: Re: Which fundamental principles would those be?

    This is too long, and too mistaken, for me to address now.

    That may sound like a cop out, but it's true.

     

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  42.  
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    That One Guy (profile), Feb 26th, 2014 @ 2:47pm

    Re: Re: Re: Re: Which fundamental principles would those be?

    And as such the 'author' is generally accepted as the one behind the camera/lens, not the person/people in front of it.

    If you're arguing that the one(s) being recorded, whether in photo or film, should be considered the 'author', as 'contributing the original expression', I hope you realize what an absolute nightmare that would be for photographers, as it would mean that if they took a picture of a large crowd(say at a sports stadium), then any of the people in the photo could claim copyright over it, making photography of anything more than inanimate objects an impossibly complex, and expensive, process.

     

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  43.  
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    Anonymous Coward, Feb 26th, 2014 @ 2:49pm

    Re: Re: Re:

    When was the last time you looked into the law on works made for hire?

    At any rate, it sounds like there was no written contract.

     

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  44.  
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    Anonymous Coward, Feb 26th, 2014 @ 2:50pm

    Re: Re: Re:

    What? You are going off the rails here. You obviously have some familiarity with copyright law...but not that much. Fixing in video/film is clearly a tangible medium of expression for copyright protection purpose. That is not arguable.

     

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  45.  
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    Edward Teach, Feb 26th, 2014 @ 2:51pm

    Re: Re: Re: Re: Which fundamental principles would those be?

    Objection! Opposing Counsel is wimping out!

    Try to score logical points, not rhetorical or theatrical.

     

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    Edward Teach, Feb 26th, 2014 @ 2:54pm

    Re: Re: Re: Re: Re: Re: Which fundamental principles would those be?

    The laws about works for hire aren't what we obviously think they are? Shocking! We should consult an attorney!

    I believe that's why people wanted you to elaborate on your "fundamental copyright" statement. That doesn't fit what everyone knows, and regular ol' folks know a lot about copyright these days.

    The (a) clause above sounds like it fits for "an actor". The scope of "an actor's" employment is to act as seen fit by director (or whoever is paying for their work). So, again, what touchstone, doctrine, 3-pronged test or other legal gobbledy-gook should we be following to puzzle this one out and come up with an answer favorable to MPAA member corporations?

     

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    Leigh Beadon (profile), Feb 26th, 2014 @ 2:54pm

    Re: Re: Re: Re: Which fundamental principles would those be?

    Yet you chose to address it now -- with a cop out.

    I look forward to your actual reply if you decide to make one...

     

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  48.  
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    Anonymous Coward, Feb 26th, 2014 @ 2:55pm

    Re: Re: Re: Re: Re:

    But with film there doesn't have to be an explicit contract. Whoever shoots it owns the copyright to it unless they gave the copyright up to someone else in a contract. Without a signed release she would retain publicity rights that she could assert, but that isn't a federal copyright matter anyway.

     

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    Anonymous Coward, Feb 26th, 2014 @ 2:59pm

    Re: Re: Re: Re: Re: Re: Re: Which fundamental principles would those be?

    He's actually right about that. I didn't see that part until I looked it up.


    (1) a work prepared by an employee within the scope of his or her employment; or (2) a work specially ordered or commissioned for use as a contribution to a collective work, as a part of a motion picture or other audiovisual work, as a translation, as a supplementary work, as a compilation, as an instructional text, as a test, as answer material for a test, or as an atlas, if the parties expressly agree in a written instrument signed by them that the work shall be considered a work made for hire. (17 U.S.C. § 101)


    However, for the photography part, the photographer automatically owns the copyright when he shoots it whether he registers it or not. Not sure about the sound recording part of it though.

     

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  50.  
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    Leigh Beadon (profile), Feb 26th, 2014 @ 3:03pm

    Re: Re: Re: Re:

    What? You are going off the rails here. You obviously have some familiarity with copyright law...but not that much. Fixing in video/film is clearly a tangible medium of expression for copyright protection purpose. That is not arguable.

    No, I'm trying to keep to sets of rails separate, and you are jumping between them.

    The question of whether a performer who has authorized the recording of their performance still holds a right in the recording is separate from the question of whether an author who has scripted a piece of choreography or pantomime holds a copyright in that work.

    There is a reason that the Rome treaty specifically addresses performer's rights -- because they are nowhere to be found in the Berne convention. And even within the Rome treaty, performers are not simply granted a basic copyright, rather they are given a new set of specific enumerated exclusive rights to prevent: the broadcasting and the communication to the public of their live performance; the fixation of their live performance; the reproduction of such a fixation if the original fixation was made without their consent or if the reproduction is made for purposes different from those for which they gave their cons.

    The only one of those rights that might conceivably have been violated here is the last one, and even that is besides the point since US law does not recognize these rights from the Rome convention.

     

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  51.  
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    Anonymous Coward, Feb 26th, 2014 @ 3:07pm

    Re: Re: Re: Re: Re: Which fundamental principles would those be?

    The way photography works after the Copyright Act of 1976 is that a photographer automatically gets the copyright on what he shoots. No contract needed. No registration needed. If there is a prior contract then it would be subject to the terms of the contract. If the photographer is working as an employee, for someone else, then it's work for hire and he doesn't get it. But if there's no contract and it's not work for hire, he owns the copyright. Subjects still retain the publicity rights to their likeness, but that is why photographers ask for a signed model release. But publicity rights aren't a federal copyright matter but rather a state law matter.

     

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    nasch (profile), Feb 26th, 2014 @ 3:12pm

    Re: Re: Re: Re: Which fundamental principles would those be?

    That may sound like a cop out

    It sure does.

     

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    Anonymous Coward, Feb 26th, 2014 @ 3:20pm

    I like this ruling. If this stands, it might actually be brilliant. Maybe this is finally the point where copyright becomes so broken for everyone involved, that it has to be properly fixed.

     

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  54.  
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    Anonymous Coward, Feb 26th, 2014 @ 3:22pm

    Re:

    "ninth circus"?

    was that on purpose?

     

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  55.  
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    John Fenderson (profile), Feb 26th, 2014 @ 3:47pm

    Re: Re: Re: Re: Re:

    "There was no written contract."

    That doesn't mean there wasn't a contract, though.

     

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    Anonymous Coward, Feb 26th, 2014 @ 4:05pm

    I'm not sure about whether the correct legal justifications were used, but there's a reason there are humans in the legal system. Sometimes a little mercy is needed.

    This poor woman did not ask for death threats. She was systematically misled by the film maker, and has suffered appallingly for it. There is a difference between editing for artistic purposes and editing to make you say things you would never say. Imagine if you agreed to be in a documentary and all your dialogue was over-dubbed with someone saying the exact opposite thing. Is that right? No. Should it be attacked using copyright? I have no idea.

    The guilty party is the film maker, not her, not Google, and not the judge. The parts of the Muslim world issuing fatwas against her are of course also at fault. If Muslims were trying to take down the movie I would call slippery slope. But should a person's life be potentially sacrificed in the name of freedom of speech for a fraudster? This is HER request to remove, not anybody else's.

     

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    nasch (profile), Feb 26th, 2014 @ 4:28pm

    Re:

    But should a person's life be potentially sacrificed in the name of freedom of speech for a fraudster?

    How exactly would taking the movie off of YouTube save her life? You think there is an extremist somewhere who would kill her if he saw the video, but he will only see it if it's on YouTube?

     

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    Zem, Feb 26th, 2014 @ 4:32pm

    Going out on a limb here

    Kosinski is a genius! Yes I mean it.

    By writing the judgment in the way he did it forces the supreme court to consider certain issues in detail, that it would rather avoid, during the appeal.

    Looking forwards to the appeal decision becoming an important ruling in case law.

     

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  59.  
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    Anonymous Coward, Feb 26th, 2014 @ 4:37pm

    I love this ruling

    I love this ruling if for no other reason than to mess with Hollywood. No actors can demand royalties for kovie sales and rentals or disallow it altogether.

    Oh, btw, it was Obama who blamed the movie for Benghazi. You seemed to tap dance around that. ;)

     

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  60.  
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    Anonymous Coward, Feb 26th, 2014 @ 4:52pm

    Re: Re:

    You do what you can. There's no magic "recall all copies from the world" button. And to be fair, while YouTube is not the only source, it is a large and easily available source. The thing about psychos out to kill you, is that it only takes one. I'd rather limit the number, how about you?

     

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    Alsee, Feb 26th, 2014 @ 5:44pm

    Re:

    That's a Rightwing fiction.
    The 9th circuit is by far the largest, and naturally it represents up the largest raw number of cases heard by the Supreme Court. The 9th Circuit is better than average in the fraction of cases overturned by the Supreme Court.

     

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  62.  
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    Pegr, Feb 26th, 2014 @ 5:45pm

    Re: Re: Re:

    Tell ya what. You limit yours and I'll limit mine.

     

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  63.  
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    Bergman (profile), Feb 26th, 2014 @ 5:54pm

    Re: Re: Re: Re: Re:

    Ah, but you can't issue a copyright takedown order as part of a contract dispute of this type, so even if she won she'd lose. This is what is known as gaming the system, and as we can see, it pays off just often enough to be worth a shot.

     

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    Anonymous Coward, Feb 26th, 2014 @ 6:02pm

    Re: Re: Re: Re: Re: Which fundamental principles would those be?

    That is because it is.

     

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  65.  
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    Anonymous Coward, Feb 26th, 2014 @ 6:08pm

    Re: Re: Re: Re:

    So which is it? Was there no written contract because you KNOW there was no written contract as you asserted earlier or does it just SOUND like there was no written contract and your previous assertions were based on assumptions that you really don't know if they are true or not which basically means you may know some law but like many lawyers are basically full of shit?

     

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  66.  
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    Anonymous Coward, Feb 26th, 2014 @ 6:10pm

    Re: Re: Re: Re: Re: Which fundamental principles would those be?

    Classic AJ.

     

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  67.  
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    Anonymous Coward, Feb 26th, 2014 @ 6:16pm

    Re: Re:

    Assuming the facts stated in the decision are complete as to all elements associated with a "work for hire", the majority arrives at the correct conclusion based upon the statutory language.

    Employee? In the context of film making this is rarely the case. Services of actors are almost invariably secured with them as independent contractors.

    Specially ordered or commissioned? Maybe, but the statute is clear that the ownership of such a work must be reflected in a written agreement signed by the parties.

     

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  68.  
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    jgperez (profile), Feb 26th, 2014 @ 6:36pm

    Mostly a good, tightly reasoned opinion

    Despite this overwrought article, this was (mostly) a good, tightly reasoned opinion.

    The article misunderstands the ruling. The judge did not say that "Garcia has a copyright interest in the film." He ruled that she had a copyright interest in the part of the film involving her own performance, and not at all in the film as a whole.

    Subsuming her interest into the overall copyright of the project is what had to be examined.

    Because, saying that actors in a recorded performance have NO copyright interest whatsoever is nonsensical, and at any rate, the law is that they do.

    Thus the court then looked at the three theories under which she might have been considered to have assigned her interest. First, that she was an employee. She was not. This is, BTW, what the discussion on whether the producer was engaged in the business of film-making fits in. Also the part about whether or not he personally supervised and directed the actual work. It is not at all about copyright law; it is entirely about whether she was an employee, for if she was, then this was a "work made for hire." The alarm that TechDirt's article expresses over this section of the opinion disappears once you realize what is being analyzed is not whether the scriptwriter/producer is the film's *author* but whether he is her *employer,* and she an *employee.* If that were to be the case, since she was paid for her time, her work product would have belonged entirely to the employer just as much as if she'd been making widgets in a factory under conventional legal analysis.

    The finding is that she was not an "employee" but rather an independent contractor.

    As an independent contractor, for her creative work to be considered "made for hire," the same as an actual employee's would be automatically, the producer needed to get her explicit agreement. He did not get that agreement. A supposed agreement was introduced by Google, but a handwriting expert working for her said the signature was forged. The District (lower) Court did not rule on the issue, so for appeal purposes, the facts that the appeal court was bound by is that there was no such contract.

    The third aspect is whether her inclusion in the final film was covered by an implied license. The court makes clear this would almost always certainly be the case. After all, she knew they were filming, she knew the lines she was saying and what the 4 pages of script that involved her role contained, the name of the project, etc.

    The court's conclusion that this film was not covered by her implied license is, I think, sound.

    Specifically, if she is taken to have implicitly authorized her performance to be used in this way, then every work of performance is always and at all times a work made for hire, for it can be used in any way the producer decides, with no restriction whatsoever. Thus the distinction between an employee (considered an extension of his employer) and a contractor (considered to be making his/her own autonomous decisions to at least some extent) is completely obliterated for copyright purposes. Those who would benefit from this would be record companies and movie studios, not musicians or actors.

    The court takes extra care to make clear this is not about the actor being disappointed in how the film was edited or its overall quality or more or less significant editorial/creative changes, but it is about it being a completely, totally, and absolutely different project than the one she agreed to work on *as an independent contractor.* The plain fact is that her creative work, her performance, was obtained by fraud, and therefore no valid license exists to incorporate her performance into THIS work.

    Consider a parallel case. You have a teenage garage band that performs "in character" (think Kiss or a "tribute band"). Some guy comes up to you, says he is doing a movie about teen bands like yours and would you let him use you performing in his movie for $500. You say OK, he records. He even has you say a few words to the camera.

    The movie comes out and it is called "Hell spawned rape bands," where your band's characters are depicted as vicious Satanists who prefer pre-teenagers. What you said on camera is overdubbed to show that you are child rapist predator scum.

    I would argue that in such a case, as in the one involved in this court decision, even if the band had been formal employees and even if they had signed all the releases in the world and had been paid gizillions of dollars, the fraud involved meant that none of those contracts were valid and thus no assignment or work-for-hire copyright transfer would have taken place.

    But especially as there was no pretense of an employer-employee relationship, nor a work-for-hire agreement by a free-lancer, telling Ms. Garcia she has no rights over her own performance, that the producers are free to abuse and misuse it any way they want, is preposterous.

    Especially as its misuse is, on its face, libelous and an incitement to violence against her.

    The one point where I have misgivings is that the court's ruling is that although she has only a legitimate copyright interest in her own performance, the whole video must be taken down. Her interest does not touch anything else in the film. So does there need to be a balancing test, between how much of her performance is used and the work as a whole? Should Google instead have been ordered to leave that part out? Should the producer have been ordered to delete the scene? But, on balance, it is better for the courts simply to say you cannot publish this because you have no authority to include her performance than start issuing orders on how to remedy the violation.

    I think this case could just as well have been brought under any number of theories of tortious and fraudulent conduct, and I think it does illustrate the *problem* with the DMCA take-down procedure, that it was Google and not the producers who were in reality the main defendants. This is not a good law, but given the state of the law, I believe the case was correctly --and perhaps more importantly, justly-- decided.

     

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  69.  
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    Anonymous Coward, Feb 26th, 2014 @ 6:53pm

    Re:

    So you think the way to solve this is to create binding precedent that does weird things to copyright AND weakens freedom of speech for all of us, forever?

    Unfortunately, I think the majority here agreed with you. They wanted a particular result in THIS case regardless of what the precedent would mean in future cases. And this is how we get bad case law.

    And then the court decides, even though the case is NOT yet settled - they only ruled on the probability of her eventually prevailing - that prior restraint of speech was called for, AND a gag order. You think you have a fair use case for the video? Too bad! Google is ordered to stop you before you can upload it - and for a period of time was prohibited from telling you why!

    As the dissent states, mandatory injunctions should not be issued in doubtful cases. And the denial of one should not be overturned unless the lower court actually abused its discretion in denying it - not just because the circuit court merely disagrees. As the dissent states: "The district court concluded that it was unclear whether Garcia had a copyright interest in her acting performance. The district court’s discretionary conclusion hardly appears illogical or implausible."

    And about the copyright... As the dissent states, "Ninth Circuit precedent dictates that a vocalist’s singing of the song is not copyrightable." A vocalist performing a song is EXACTLY like an actress performing her lines. In both cases you have a script/lyrics, and in both cases the value of the work depends in large part on the talent of the performer. It has already been decided that the singer does not have copyright. Why is the actress different?

    (But you've already answered that: it's because she got death threats, and therefore you want to do whatever it takes to get the video down because you think it will help her. And so you also make sure that even though she has copyright on part of the work, she's not considered a joint author, because being deemed a joint author would actually let the other joint authors use the work. And you already decided you didn't want that - you don't actually care about the copyright, you just wanted something that would get the video down.)

    She specifically chose to argue copyright in this lawsuit. She could have made any argument she wanted, but this is the one she chose. We should not change the state of copyright law - and more importantly, free speech - because she chose to make a bad legal argument.

    there's a reason there are humans in the legal system.


    The problem is that when you stop paying attention to the law and rule however you feel like ruling... you've stopped paying attention to the law. The consequences of that are much worse than one person dying, unfortunately. And it's not likely that this person's life actually hung in the balance on this case... at this point there's not likely to be new death orders against her based on the video being on YouTube or not. (Also, who else are we going to use besides humans, chimps? And when we REALLY want "humans" we use a jury, not circuit court judges.)

     

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  70.  
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    Adrian, Feb 26th, 2014 @ 6:57pm

    Prior restraint

    The problem with Google’s position is that it rests entirely on the assertion that Garcia’s proposed injunction is an unconstitutional prior restraint of speech. But the First Amendment doesn’t protect copyright infringement.

    You know what else the First Amendment doesn't protect? Any kind of speech that must be found illegal prior to being shut down. In other words, any and all kinds of speech where prior restraint might be at issue.

    By forcing Google to take down not just existing copies but also any copies uploaded in the future, it is in essence holding Google responsible for every future act of infringement by Google's users prior to a determination of infringement for each such act.

    I thought Kozinski was smarter than this.

     

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  71.  
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    Adrian, Feb 26th, 2014 @ 7:06pm

    Re: Mostly a good, tightly reasoned opinion

    "The article misunderstands the ruling. The judge did not say that 'Garcia has a copyright interest in the film.' He ruled that she had a copyright interest in the part of the film involving her own performance, and not at all in the film as a whole."

    Having a copyright interest in the film does not mean having the copyright to the film as a whole, so the article makes no such mistake. If anything, it is the court itself which makes this mistake by ordering Google to "take down all copies of 'Innocence of Muslims' from YouTube.com and from any other platforms under Google’s control, and take all reasonable steps to prevent further uploads of 'Innocence of Muslims' to those platforms."

     

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    Anonymous Coward, Feb 26th, 2014 @ 7:13pm

    didn't we already go through something like this with crispin glover.

     

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    Sardondi (profile), Feb 26th, 2014 @ 7:30pm

    This is a simply insane opinion (I wonder how the Hollywood studios like the precedent). Unfortunately it's typical of Judge Kozinski who never met a leftist/Democrat/postmodern liberal/postmodern progressive/collectivist/statist idea he didn't want to take home and keep as a pet. The mainstream media absolutely swoons over him - because he's theirs.

     

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    nasch (profile), Feb 26th, 2014 @ 7:46pm

    Re: Re: Re:

    The thing about psychos out to kill you, is that it only takes one. I'd rather limit the number, how about you?

    I'd rather court decisions were made based on facts, evidence, and the law, rather than speculative appeals to emotion.

     

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  75.  
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    nasch (profile), Feb 26th, 2014 @ 7:48pm

    Re: Mostly a good, tightly reasoned opinion

    The movie comes out and it is called "Hell spawned rape bands," where your band's characters are depicted as vicious Satanists who prefer pre-teenagers. What you said on camera is overdubbed to show that you are child rapist predator scum.

    Sounds like more of a defamation case than copyright.

     

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    Vinny B., Feb 26th, 2014 @ 8:08pm

    Great ruling the Court

    What difference at this point does the court's rationale make? This video had zero artistic value and angered lots of peaceful people into action. While you won't find a bigger defender of the First Amendment than me, the First Amendment wasn't designed to allow scummy film makers to use the medium to make illegal political comments that broadly paints an entire religious group as violent intolerant people who resort to violence the moment they feel insulted. The judge was croc to protect Muslims from unwarranted offense and whatever reason he used doesn't matter. It is the result that counts, and this ruling will go a long way in stopping the alienation of Muslims in this country, who are victims of daily bigotry on a level that the criminal Republican Party keeps stroking in order to placate the redneck cracker Jesus freaks.

     

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    W Klink (profile), Feb 26th, 2014 @ 8:53pm

    Re: Great ruling the Court

    Any time someone declares that "you won't find a bigger defender," you can be sure that they are anything but.

    The First Amendment was not created to protect the freedom to say what everyone else already agrees with, it was created to protect the unpopular opinions. In this country, there is no such thing as an "illegal political comment."

     

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    Leigh Beadon (profile), Feb 26th, 2014 @ 9:18pm

    Re: Great ruling the Court

    "whatever reason he used doesn't matter"

    Then why have written laws at all? Whenever someone decides they don't like someone else, we just grab a judge, and if he says "hmmm yeah you suck" then you get punished in whatever way seems more or less appropriate. Brilliant!

     

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    nasch (profile), Feb 26th, 2014 @ 9:24pm

    Re:

    Unfortunately it's typical of Judge Kozinski who never met a leftist/Democrat/postmodern liberal/postmodern progressive/collectivist/statist idea he didn't want to take home and keep as a pet.

    If you can explain how this decision is even two of those things, I'll be surprised.

     

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    techflaws (profile), Feb 26th, 2014 @ 10:17pm

    Re: Re: Re: Re: Which fundamental principles would those be?

    It's true, it sounds like a cop out.

     

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  81.  
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    techflaws (profile), Feb 26th, 2014 @ 10:21pm

    Re: Re: Re:

    I'd rather see the blame put where it belongs.

     

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  82.  
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    techflaws (profile), Feb 26th, 2014 @ 10:23pm

    Re: Mostly a good, tightly reasoned opinion

    The movie comes out and it is called "Hell spawned rape bands," where your band's characters are depicted as vicious Satanists who prefer pre-teenagers. What you said on camera is overdubbed to show that you are child rapist predator scum.

    Can you say overwrought?

     

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  83.  
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    techflaws (profile), Feb 26th, 2014 @ 10:27pm

    Re: Great ruling the Court

    angered lots of peaceful people into action

    So peope who utter *death threats* because of somone who has a different opinion are peaceful just because they haven't acted on it? Weird definition of peaceful you got there.

     

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  84.  
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    Anonymous Coward, Feb 26th, 2014 @ 10:45pm

    Re: Great ruling the Court

    OK, this post HAS to be sarcastic/satire.

    First, the "What difference at this point" comment, originally said by Clinton about the Benghazi attacks that this very video was blamed for (this is what tipped me off.) Then the "illegal political comments", which of course don't exist in this country. Then the "paint an entire religious group as violent intolerant people" remark, when that group is the one issuing death threats over the video. Then, of course, the "criminal Republican party" comment followed by "redneck cracker Jesus freaks."

    So if you took that post seriously - you can relax a little, he didn't ACTUALLY think that way.

     

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  85.  
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    Anonymous Coward, Feb 26th, 2014 @ 11:03pm

    Re: Great ruling the Court

    People who believe in an imaginary friend that bans gays from dicking their asses are stupid, anyway. Whether it's Jesus or Mohammed doesn't make a difference.

     

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  86.  
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    Mike Masnick (profile), Feb 27th, 2014 @ 12:41am

    Re: Great ruling the Court

    "While you won't find a bigger defender of the First Amendment than me... make illegal political comments"

    Does not compute.

     

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  87.  
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    Mike Masnick (profile), Feb 27th, 2014 @ 12:52am

    Re: Mostly a good, tightly reasoned opinion

    Despite this overwrought article, this was (mostly) a good, tightly reasoned opinion.


    Having spoken to nearly half a dozen copyright experts, I've yet to find anyone who doesn't think this ruling is one of the worst they've ever seen.

    The judge did not say that "Garcia has a copyright interest in the film." He ruled that she had a copyright interest in the part of the film involving her own performance, and not at all in the film as a whole.

    That argument would be a lot stronger if Kozinski didn't order Google to take down all copies of the entire film. The very fact that the court did exactly that shows that the distinction you're trying to set up is so illusory that even the court issuing the decision did not understand it.

    Because, saying that actors in a recorded performance have NO copyright interest whatsoever is nonsensical, and at any rate, the law is that they do.

    It is neither nonsensical nor does the law say what you say it does.

    The alarm that TechDirt's article expresses over this section of the opinion disappears once you realize what is being analyzed is not whether the scriptwriter/producer is the film's *author* but whether he is her *employer,* and she an *employee.*

    No, the alarm remains the same. Kozinski's ruling clearly suggests that a first time indie filmmaker who is not a Hollywood mogul cannot be an employer. That's ludicrous.

    As an independent contractor, for her creative work to be considered "made for hire," the same as an actual employee's would be automatically, the producer needed to get her explicit agreement. He did not get that agreement.

    This is the one point we agree on -- which is why I noted that the rules for works made for hire are quite specific (unlike what most people who don't know the law think).

    Consider a parallel case.

    What you describe is not a parallel case at all.

    I would argue that in such a case, as in the one involved in this court decision, even if the band had been formal employees and even if they had signed all the releases in the world and had been paid gizillions of dollars, the fraud involved meant that none of those contracts were valid and thus no assignment or work-for-hire copyright transfer would have taken place.

    That seems immensely troubling to me and seems wide open to both massive abuse and opens the window to a whole slew of wasteful lawsuits.

     

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    ryuugami, Feb 27th, 2014 @ 2:24am

    Re: Great ruling the Court

    broadly paints an entire religious group as violent intolerant people who resort to violence the moment they feel insulted.

    To which a sizable portion of said religious group felt insulted and immediately resorted to violence. Now that should prove the movie wrong!

    (Disclaimer: I have no idea, nor interest, about what the actual movie is like. I also have nothing against Muslims or Islam itself, but I do have a lot of somethings against the violent idiots using religion as an excuse for bloodshed. Fuck 'em with a rusty spoon.)

     

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    Ninja (profile), Feb 27th, 2014 @ 2:56am

    Re: Re: Great ruling the Court

    He doesn't even know what the First Amendment is about. You can bet on that.

     

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    astroboi, Feb 27th, 2014 @ 5:02am

    Has anybody actually seen this movie?

    When it first came out I looked for it out of morbid curiousity. All I found was a "trailer" which was actually one continuous segment running around 5 minutes. I still cannot find anything like a complete movie. All the files large enough to be an entire movie are fakes and those appearing to be the complete movie are far too small to be anything but a few minutes long. Does the movie actually exist? Or did they record a few test scenes (for which the complaining actress was paid $500) and hope to generate enough interest to get financing to complete the movie?

     

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    Rekrul, Feb 27th, 2014 @ 5:18am

    Re: Has anybody actually seen this movie?

    For what it's worth, I have a version that runs 74 minutes. I've never watched it all because I just can't bring myself to sit through such badly acted garbage, but it seems to have a lot of scenes set in the present as well as many set in the past. There are no real titles to the film, nor any credits at the end. It claims to be the full movie, but I don't know if it is or not. I downloaded it from YouTube back in 2012.

    Want me to upload it somewhere?

     

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    Rekrul, Feb 27th, 2014 @ 5:18am

    Guess it's a good thing I downloaded a copy of it then. :)

     

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    Dan Tobias, Feb 27th, 2014 @ 5:47am

    It seems that while this actress does have reasonable grounds for regarding her treatment by the film producers as unfair, having her work under false pretenses on a film with subject matter unknown to her that got her embroiled in political and religious controversy, she (along with the judge) is abusing copyright law to achieve her desired ends.

    If you've sat through the credits of any movie, you know of the huge number of people involved. Some, like the drivers and caterers and accountants, don't produce anything that directly appears on film, but many do, and it would open up huge cans of worms if every one of them could retroactively claim copyright to parts of the film despite their contracts giving the producers the right to use their work.

     

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    Pragmatic, Feb 27th, 2014 @ 5:50am

    Re: Re: Hollywood to the Rescue?

    Could this be why Judge Kozinski has made this ruling? It's a hell of a way to slap Hollywood down, bearing in mind that they claim their excessive demands are all about the artists. Think about it: this is a case of "the artist" demanding control over her contribution to the film as part of the trend towards copyright maximalism where it's not about exclusive distribution rights any more, it's about control over how, where and when the distribution takes place.

    Butter the popcorn, people, this is going to be at least as much fun as Prenda.

     

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    Pragmatic, Feb 27th, 2014 @ 5:56am

    Re:

    *Snigger*

    As I said, butter the popcorn, people, this is going to be fun. Now every performer in the business is going to weigh in. Stunt men, extras... oh, dear me, what a tangled web we weave...

     

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    Pragmatic, Feb 27th, 2014 @ 6:00am

    Re:

    Mercy cannot be provided for Garcia by removing all instances of the video from one video service. Copyright on her performance won't affect the distribution of this film, either, and keeping the story in the public eye just serves to get people looking for it and finding it, making things worse for her.

    She should be keeping her head down, hoping everyone forgets about it. The only person worth suing over this is the film maker, who deceived her and brought this on her by misrepresenting her on film.

     

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    Niall (profile), Feb 27th, 2014 @ 6:51am

    Re: I love this ruling

    Because it is as utterly irrelevant to the point of the conversation as saying 'snow is white'. Unless you are an obsessed tea-tard?

     

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    Niall, Feb 27th, 2014 @ 6:55am

    Re:

    You only used half of your "Big Bad Words for Tea-Tards" in that post - you won't get your money's worth unless you throw in all the other buzz-words that you don't understand.

     

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  99.  
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    Anonymous Coward, Feb 27th, 2014 @ 7:44am

    Re: Re:

    copyright only attaches at the point a work is fixed in a tangible medium. A performer does not "fix" the work by virtue of the performance. To fix the performance, you need a camera or a tape recorder.

    The person fixing the work is the "author" and has the copyright. So the actor isn't the "author," the guy holding the camera is.

    Hate to say it, but Alex is way off base here.

     

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    Anonymous Coward, Feb 27th, 2014 @ 7:47am

    Re: Re: Which fundamental principles would those be?

    no. the actor's expression doesn't matter at all. The only thing that matters is who is holding the camera.

     

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    Karl (profile), Feb 27th, 2014 @ 9:05am

    Re: Mostly a good, tightly reasoned opinion

    saying that actors in a recorded performance have NO copyright interest whatsoever is nonsensical, and at any rate, the law is that they do.

    Quick point before class.

    In reality, the law explicitly states that actors (and cinematographers, etc.) don't hold a copyright interest in a film:
    A "work made for hire" is -
    [...]
    (2) a work specially ordered or commissioned for use as a contribution to a collective work, as a part of a motion picture or other audiovisual work [...]
    - 17 USC 101

    The focus is on the type of work, not the type of employer, which makes Kozinski's ruling all the more puzzling.

     

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    John Fenderson (profile), Feb 27th, 2014 @ 9:14am

    Re: Mostly a good, tightly reasoned opinion

    "He ruled that she had a copyright interest in the part of the film involving her own performance"

    Which is precisely where the ruling goes awry. In US copyright law, a performer has no copyright interest in their own performance unless copyright has been assigned to them. The copyright goes to the people who fixed the performance into a tangible form.

    Seriously, this is extremely well-established law, backed up by a ton and a half of court rulings.

    "The movie comes out and it is called "Hell spawned rape bands," where your band's characters are depicted as vicious Satanists who prefer pre-teenagers. What you said on camera is overdubbed to show that you are child rapist predator scum."

    There is no copyright problem in your scenario.

     

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    John Fenderson (profile), Feb 27th, 2014 @ 9:24am

    Re: Great ruling the Court

    "While you won't find a bigger defender of the First Amendment than me, the First Amendment wasn't designed to allow scummy film makers to use the medium to make illegal political comments that broadly paints an entire religious group as violent intolerant people who resort to violence the moment they feel insulted."

    Wow, that's a lot of fail for a single sentence, even if it is a run-on one.

    First, based on your comment, it appears that almost any defender of the first amendment is a bigger one than you, since you've stated here that you only believe in free speech for speech that is inoffensive and/or that you agree with.

    Second, the First Amendment protects speech like this just as much as "nice" speech. If it didn't then the first amendment would be utterly without meaning.

    Thirdly, this: "make illegal political comments". Excuse me? What the hell are "illegal political comments"?

    "The judge was croc to protect Muslims from unwarranted offense and whatever reason he used doesn't matter. It is the result that counts"

    That statement terrifies me. The reasoning is the main thing that counts, as it can and will be applied in future court cases where the defendents aren't awful.

     

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    Anonymous Coward, Feb 27th, 2014 @ 11:11am

    Re: Re: Mostly a good, tightly reasoned opinion

    Except that part (2) of the work for hire rule includes the language "... if the parties expressly agree in a written instrument signed by them that the work shall be considered a work made for hire." There appears to be no such instrument (actually, in comment 68 someone said something about there being one but there was suspicion it was forged), which is why they are looking at section (1) instead, which is simply "a work prepared by an employee within the scope of his or her employment".

    But I think it's clear she was an employee. She got paid, and she wasn't involved in writing the script so she wasn't an author. The court tried to argue that the person who made the film wasn't an employer because he hadn't previously made films, which just seems bizarre - he made THIS one, and anything else he may or may not have made is irrelevant.

     

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  105.  
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    Anonymous Coward, Feb 27th, 2014 @ 1:06pm

    Re: Re: Re: Re: Re: Re:

    "Whoever shoots it owns the copyright to it unless they gave the copyright up to someone else in a contract"

    Says who? That's not what the Copyright Act says or what the case law interpreting the Copyright Act says. What are you basing that on?

     

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  106.  
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    Anonymous Coward, Feb 27th, 2014 @ 1:07pm

    Re: Re: Re: Re: Re: Re:

    She asserted a copyright claim and as been successful thus far. The fact that there could theoretically be a contract dispute as well is irrelevant to that.

     

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    Anonymous Coward, Feb 27th, 2014 @ 1:08pm

    Re: Re: Re: Re: Re: Re: Re: Re: Which fundamental principles would those be?

    "He's actually right about that"

    Shocking, I know.

     

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    Anonymous Coward, Feb 27th, 2014 @ 1:13pm

    Re: Re: Re: Re: Re: Which fundamental principles would those be?

    You have to look at the facts of each situation. If only one person is creating original expression to the work (and is just having someone else push the button on the camera), they are the author.

    If the person pushing the button on the camera is also the only one creating original creative expression (i.e., telling the person in front of the camera exactly what to do, in addition to making the other creative decisions), then they are the author.

    If both parties are contributing their own original creative expression to the work, then there is a strong argument that they are both joint authors.

    This is not a nightmare in practice, because this can all be resolved by written agreement.

     

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    astroboi, Feb 27th, 2014 @ 1:31pm

    Re: Re: Has anybody actually seen this movie?

    "Want me to upload it somewhere?"

    Absolutly! Morbid curiosity wins every time. If we are going to discuss this show we should at least see it before judgeing it. How about a.b.teevee or a.b.documentaries. Where ever you put it, use the correct title or nobody will be able to find it.

     

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    Anonymous Coward, Feb 27th, 2014 @ 1:46pm

    Re: Re: Re: Re: Re: Which fundamental principles would those be?

    Most people I deal with would like to know "I got your message, but can't give you a full response right now", rather than not response at all. Maybe you're different.

    Anyhoo...

    The Copyright Act does not distinguish between "performers" or "producers" or anything else when it comes to copyright ownership. Rather, it refers to "authors." The author(s) of a work own the copyright in the work the moment it is fixed in a tangible medium of expression. Whether or to what extent the Copyright Act grants European-style moral rights is irrelevant to that question.

    The interesting thing is that the Copyright Act does not define the term "author." It does anticipate that a work can be prepared by "two or more authors" though, and states that "[a] 'joint work' is a work prepared by two or more authors with the intention that their contributions be merged into inseparable or interdependent parts of a unitary whole." I think the vast majority of films would fall under this category, and I question Kozinski's statement that the evidence doesn't support such a conclusion in this case.

    Anyway, for well over 100 years it has been the law the the person making the creative decisions embodied in a photograph is considered the "author", rather than some simply rule that whoever pushes the button is the author. Burrow-giles Lithographic Co. v. Sarony, 111 U.S. 53, 4 S.Ct. 279, 28 L.Ed. 349 (1884).

    Kozinski makes a pretty good argument that the actor contributes *some* original expression, in the form of body language, inflection, etc. I recall reading a journal article several years ago that came to the same conclusion, so it's not exactly an outlandish conclusion.

    If you are aware of any legal basis for the proposition that somebody who contributes their own creative expression to a work is not the author because "they didn't do the fixing," I'd love to see it.

    The trickier question is whether there is a *separate* copyright in the performance (which I think is probably BS, but really does depend on the evidence submitted), or a single copyright int he work that incorporates the performance. If you buy that there is a separate copyright in the performance, then of course she's the author/owner, because she was not an employee and there was no written/signed work made for hire agreement.

    I think it's more likely she was a joint author, but the Ninth Circuit's precedent on that issue in a film context is problematic. It makes some practical sense, but does not really follow the statutory language.

     

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  111.  
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    Anonymous Coward, Feb 27th, 2014 @ 1:46pm

    Re: Re: Re: Re: Re: Re: Which fundamental principles would those be?

    You know what happens when you assume, right?

     

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    Anonymous Coward, Feb 27th, 2014 @ 1:47pm

    Re: Re: Re: Which fundamental principles would those be?

    Amazing how many people keep saying this as if it were true.

     

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    Anonymous Coward, Feb 27th, 2014 @ 1:48pm

    Re: Re: Re: Re: Re:

    Howzabout you go read the opinion yourself and satisfy your curiosity.

     

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    Anonymous Coward, Feb 27th, 2014 @ 1:52pm

    Re: Re: Re: Re: Re:

    You keep referring to international treaties as if they had some bearing on interpretation of the U.S. Copyright Act. Why is that?

    Anyway, I was primarily addressing your argument (did I misunderstand?) that a video is not a tangible medium of expression for purposes of the Copyright Act.

     

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  115.  
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    Anonymous Coward, Feb 27th, 2014 @ 1:53pm

    Re: Re: Re:

    "The person fixing the work is the "author" and has the copyright."

    So many people say this as if it were true, but the law does not. Do you have basis for saying this that I am just unaware of?

     

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    Anonymous Coward, Feb 27th, 2014 @ 2:13pm

    Re: Going out on a limb here

    Might get a 9th Circuit en banc ruling, but I doubt the SCOTUS would take this case. It would be great if they did, though.

     

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    Anonymous Coward, Feb 27th, 2014 @ 2:17pm

    Re: Re: Mostly a good, tightly reasoned opinion

    both, if they are relying on an implied license to use your performance.

     

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    Anonymous Coward, Feb 27th, 2014 @ 2:18pm

    Re: Re: Mostly a good, tightly reasoned opinion

    "Having spoken to nearly half a dozen copyright experts, I've yet to find anyone who doesn't think this ruling is one of the worst they've ever seen."

    Um...have you not read my posts? :)

     

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  119.  
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    Anonymous Coward, Feb 27th, 2014 @ 2:24pm

    Re: Re: Mostly a good, tightly reasoned opinion

    "No, the alarm remains the same. Kozinski's ruling clearly suggests that a first time indie filmmaker who is not a Hollywood mogul cannot be an employer. That's ludicrous."

    And of no practical importance, since filmmakers will practically never meet an employer/employee test, regardless of how long they've been doing it. Nor should they *want* to, because of the tax/benefits/etc. obligations that would impose on them.

     

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    Anonymous Coward, Feb 27th, 2014 @ 2:26pm

    Re: Re: Mostly a good, tightly reasoned opinion

    That's not what that law says. It says contributions from actors, etc. *can* be considered works made for hire (if there is a signed, written work made for hire agreement), not that they *are* works made for hire.

     

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    Anonymous Coward, Feb 27th, 2014 @ 2:28pm

    Re: Re: Re: Mostly a good, tightly reasoned opinion

    Getting paid doesn't make you an employee. This is a pretty classic independent contractor situation, and most filmmakers would be LIVID if they had to comply with employment laws for everybody they hired for a 3-4 day shoot.

     

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  122.  
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    Anonymous Coward, Feb 27th, 2014 @ 2:30pm

    Re: Re: Mostly a good, tightly reasoned opinion

    " In US copyright law, a performer has no copyright interest in their own performance unless copyright has been assigned to them. The copyright goes to the people who fixed the performance into a tangible form."

    Give the number of times I've seen this repeated, I would just love to see some support for it.

    Burrows-Giles (from 1884) makes pretty clear that the person making the creative decisions is the "author" regardless of who engages in mechanical fixation.

     

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    Anonymous Coward, Feb 27th, 2014 @ 3:08pm

    Just thought I'd post this link to an opinion rejecting the idea that "whoever fixes the work in a tangible medium" is the author, regardless of whether they contributed the original expression.

    https://law.resource.org/pub/us/case/reporter/F2/927/927.F2d.132.90-5623.90-5622.html

     

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    Leigh Beadon (profile), Feb 27th, 2014 @ 3:08pm

    Re: Re: Re: Re: Re: Re:

    You keep referring to international treaties as if they had some bearing on interpretation of the U.S. Copyright Act. Why is that?

    I am pointing out a) the extensive international legal discussion about the status of performer's rights as a separate thing from traditional copyright, b) the fact that the US does not even have those rights as is commented on in virtually all such discussions.

    In citing information about performer's rights it is very hard to point to US law because US law has no performer's rights. You keep responding as though this is some insane theory I have, rather than something frequently noted -- by WIPO, by entertainment industry guilds, by the copyright office, in international negotiations, etc. -- and a fairly well-known fact.

    Anyway, I was primarily addressing your argument (did I misunderstand?) that a video is not a tangible medium of expression for purposes of the Copyright Act.

    Yes, I believe you misunderstood. I'm certainly not claiming that a video is never a tangible medium of expression. I'm questioning your comparison of an actor's performance in a movie to pantomime and choreography, where the intent of the law is clearly to cover the composition of those things, just as it covers theatrical scripts or musical compositions. So yes, you could make the argument that her performance in studio becomes, by virtue of being filmed by the filmmaker, a fixed composition that is somewhat comparable to choreography -- but I think that's a clear distortion of the law's intent, given the (separately still being debated) fact that, otherwise, US law does not grant performer's rights.

     

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    dajhilton (profile), Feb 27th, 2014 @ 4:05pm

    Re: Re: Re: Re: Re: Re: Re:

    It is not true to say that "US law has no performer's rights." It certainly does; and those are because of international treaties that we have ratified and implemented (especially the treaties that we drafted and basically forced upon the rest of the world). Both the WTO Treaty (TRIPS agreement) and the WIPO Performances and Phonograms Treaty provide clear performance rights and rights of fixation to recording artists. These rights were implemented without any objection or debate by Congress in the late 1990's. So every performer in an audio-only work owns a copyrightable interest which must be transferred to the producer of the recording or else that performer is a joint author. There is, of course, no similar right for performers in audio-visual productions. And that is why Judge Kozinski is so far off the mark. But the fact that the US had to go through the steps of proposing -- both to the WTO and the WIPO -- new treaties that would create for the first time in history performers' right (but only for sound recording performers) shows more clearly than anything else that actors do not enjoy similar rights. Unless and until, Congress acts to do for them what Congress has already done for sound recording artists.

     

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    dajhilton (profile), Feb 27th, 2014 @ 4:07pm

    Re: Re: Re:

    Good point. You could go on to add that the person posing for the photograph isn't the author of the resulting photograph, even though it couldn't happen without them. The photographer is the author.

     

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    Gwiz (profile), Feb 27th, 2014 @ 4:08pm

    Re:

    Just thought I'd post this link to an opinion rejecting the idea that "whoever fixes the work in a tangible medium" is the author, regardless of whether they contributed the original expression.


    That was a very interesting read, thanks. It still seems to create confusion on who gets the copyright for a movie though.

    That ruling was based on this term used by SCOTUS:
    "by or under the authority of the author."
    Who is the author in a movie? Is it the executive producer? Is it the screenwriter? Is it the director? Is the the author of the book the movie is based on?

    Now, I know that Hollywood is full of lawyers and all of these issues are hammered out with contracts beforehand, but in a case like this, where there are no contracts or possibly fraudulent behavior, this is very interesting.

     

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  128.  
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    dajhilton (profile), Feb 27th, 2014 @ 4:14pm

    Re:

    She can receive mercy without being converted by tortuous logic into an author and copyright owner. There are plenty of other tort remedies that are available to her -- especially in California -- apart from copyright. Actually, Bette Midler who is mentions in the opion proved that. After losing her copyright battle, she SUCCESSFULLY sued soundalike performers and producers under that unfair competition law in Michigan and California and got the remedy she was seeking.

     

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  129.  
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    dajhilton (profile), Feb 27th, 2014 @ 4:17pm

    Re: Mostly a good, tightly reasoned opinion

    You miss the point. It doesn't matter whether she has a copyrightable interest in only her small performance or a copyrightable interest in the whole film. She has succeeded in having the whole film taken down fro the internet. Not just her performance. Judge Kozinski has given her exactly the same remedy that a copyright owner in the whole film would have. So it is a distinction without a difference. Since Ms Garcia gets to take down the whole film she is in effect given the authors' rights to the whole film.

     

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  130.  
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    Mike Masnick (profile), Feb 27th, 2014 @ 4:25pm

    Analysis by Eric Goldman and Venkat Balasubramani

    If you haven't read it, these two have each written a great analysis:

    http://blog.ericgoldman.org/archives/2014/02/in-its-innocence-of-muslims-ruling-the-ninth-c ircuit-is-guilty-of-judicial-activism-garcia-v-google.htm

    And for those arguing about the fixation issue, Goldman takes that on as well, noting:


    In order for Garcia to have a federal copyright, she must “fix” her performance by recording it herself (which she didn’t do) or have the movie producer fix her performance “on her behalf” (also clearly not the case). So there is simply no way for Garcia to claim a federal copyright interest because she failed to satisfy one of the formalities. This will be true of almost all actors who are depicted in video produced by someone else.

     

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  131.  
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    Anonymous Coward, Feb 27th, 2014 @ 4:26pm

    Re: Re: Re: Re: Re: Re: Re:

    The fact that the U.S. does not provide performers rights *as a separate thing* from copyright in the same manner other countries do is irrelevant to whether performers can own a *copyright* interest in their performances (as fixed in a tangible medium of expression).

    The U.S. *does* provide for copyright protection, and nothing says you can't have a copyright simply by virtue of the fact you are a "performer" in a work.

    This wasn't a "performers rights" suit; it is a copyright suit that happens to be brought by a performer.`

     

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  132.  
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    Anonymous Coward, Feb 27th, 2014 @ 5:08pm

    Statistics

    If you spam your opinions enough, it's bound to happen sometimes...

     

    reply to this | link to this | view in thread ]

  133.  
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    John Fenderson (profile), Feb 27th, 2014 @ 8:23pm

    Re: Re: Re: Re: Which fundamental principles would those be?

    "Says who? Unless there is a written agreement to the contrary, the copyright is owned by the "author." The "author" is generally considered to be the person (or persons) contributing the original expression."

    Says copyright law and the entire body of court rulings to date. The "author" is the one who put it into tangible form, not the artists who were recorded.

    This is why, for example, if you get your photographs taken at a professional photography studio, or hire a wedding photographer for your wedding, you don't own the copyright to the photos and you usually won't even be able to have the negatives.

     

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  134.  
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    Leigh Beadon (profile), Feb 27th, 2014 @ 8:40pm

    Re: Re: Re: Re: Re: Re: Re: Re:

    I suppose you can make that argument. But I think it's disingenuous to pretend an actor obviously deserves a copyright in their performance and... what... just... nobody noticed before?

     

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  135.  
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    Leigh Beadon (profile), Feb 27th, 2014 @ 8:46pm

    Re: Re: Re: Re: Re: Re: Re: Re:

    Indeed... I didn't really want to get into the whole side of it that is the specific performer's rights carved out for phonorecords. Those are noteworthy in how limited they are, too -- correct me if I'm wrong, but performer's lose their right in the recording simply by authorizing the recording, without needing to do anything further in terms of licensing or rights transfer.

    And yeah, the fact that these rights are specifically carved out for certain types of performers certainly strengthens the argument that they do not emerge naturally from basic copyright law. The copyright act notes that anyone who makes an (unauthorized) recording of a live musical performance will be subject to remedies "to the same extent as an infringer of copyright".

     

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  136.  
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    Leigh Beadon (profile), Feb 27th, 2014 @ 8:47pm

    Re: Re: Re: Re: Re: Re: Re: Re: Re:

    (referring to this part of the statute -- http://www.copyright.gov/title17/92chap11.html )

     

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  137.  
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    Anonymous Coward, Feb 28th, 2014 @ 9:30am

    Re: Analysis by Eric Goldman and Venkat Balasubramani

    And about the fixing, the court "addressed" it in a footnote:

    4 Neither party raised the issue of whether the author of a dramatic performance must personally fix his work in a tangible medium. Because the question is not properly before us, we do not decide it. The parties are free to raise it in the district court on remand.

     

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  138.  
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    Karl (profile), Feb 28th, 2014 @ 3:51pm

    Re: Re: Re: Mostly a good, tightly reasoned opinion

    That's not what that law says. It says contributions from actors, etc. *can* be considered works made for hire (if there is a signed, written work made for hire agreement), not that they *are* works made for hire.

    Sorry, you're right about that. I was making my point badly.

    My point is that under the statutes, workers on a film (actors, directors, cinematographers, etc.) are specifically named in the statutes as possibly working for hire, even if the studio or filmmakers aren't their employers.

    That makes them unlike, say, pop music songwriters - who cannot be working for hire. Unless you're one of the enumerated workers in the statute, your work can't be a work for hire, no matter what your contract says. (You can, of course, assign your copyright interest, and most artists do, but that's not the same thing.)

    In other words, the law was enacted specifically so that "actors in a recorded performance have NO copyright interest whatsoever." It's not remotely "nonsensical."

     

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  139.  
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    Rekrul, Feb 28th, 2014 @ 4:51pm

    Re: Re: Re: Has anybody actually seen this movie?

    Absolutly! Morbid curiosity wins every time. If we are going to discuss this show we should at least see it before judgeing it. How about a.b.teevee or a.b.documentaries. Where ever you put it, use the correct title or nobody will be able to find it.

    Unfortunately, I don't have any Usenet posting software set up on this system, so I uploaded it to a cyberlocker site;

    http://www.sendspace.com/file/ejd660

    Download speeds are decent (1MB/s) and you can even use a download manager, although it will be limited to a single connection.

    Let me know what you think.

     

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  140.  
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    btrussell (profile), Feb 28th, 2014 @ 6:12pm

    "...which more or less explicitly recognizes that actors do not get to copyright their own performance."

    Now I am confused, is it the idea or the execution?

     

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  141.  
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    Anonymous Coward, Feb 28th, 2014 @ 8:21pm

    Re: Re: Re: Re: Re: Re: Re: Re: Re:

    This sort of thing is usually (and always should be) handled by written agreement, so it's not a case of nobody thinking of it before; it's a case of the people who have good legal counsel making sure they have contracts that take care of this.

    I remember reading an article nearly 10 years ago now that came to a similar conclusion (in the absence of a written agreement, there is a pretty good argument that actors in a film might be considered joint authors).

    In fact, that is *why* the Copytright Act explicitly sets forth "contributions to a motion picture" as a category of statutory works made for hire. It is necessarily a kind of work that requires lots of people to contribute original expression, and that poses a risk of multiple joint authors.

     

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  142.  
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    Anonymous Coward, Feb 28th, 2014 @ 8:26pm

    Re: Re: Re: Re: Mostly a good, tightly reasoned opinion

    Well, the jury is still out on pop music songwriters, and I don't think there is or will be a blanket rule that applies to all contexts.

    I disagree with the intent of adding motion pictures to that WMFH definition. I think it represents a realization that multiple contributors to a motion picture could be considered joint authors if you don't allow them to be work made for hire contributors.

     

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  143.  
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    Karl (profile), Mar 1st, 2014 @ 7:27pm

    Re: Re: Re: Re: Re: Mostly a good, tightly reasoned opinion

    Well, the jury is still out on pop music songwriters, and I don't think there is or will be a blanket rule that applies to all contexts.

    The jury is certainly not out on pop music songwriters, at least as they usually work. Unless you are an actual, bona fide employee of a publisher (with hourly wages or a salary, proper tax forms, etc.), your work simply cannot be a work for hire. You can, and probably will, assign your copyright, but there is a vast difference - in the case of assignment, you originally held a copyright over the song, but that's not true for a work for hire.

    That was the whole deal with the Satellite Home Viewer Improvement Act controversy:
    http://www.salon.com/2000/08/28/work_for_hire/

    I disagree with the intent of adding motion pictures to that WMFH definition.

    I'm sure there was a lot of lobbying money involved, but it does make sense from a purely logistical standpoint. Otherwise, every single creative person working on a film - and there may be hundreds - could possibly be a "joint author" under the copyright statutes. That would make the economic exploitation of any movie a practical impossibility.

    If you're curious about the history of the whole thing, these may be interesting reads:
    http://www.copyright.gov/history/studies/study13.pdf
    http://jolt.law.harvard.edu/articles/pdf/v 01/01HarvJLTech097.pdf

     

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  144.  
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    That One Guy (profile), Mar 1st, 2014 @ 8:52pm

    Re: Re: Analysis by Eric Goldman and Venkat Balasubramani

    Gah, that just makes it worse!

    They completely ignore a very important step in determining if she even could have a valid copyright claim, because 'neither side brought it up', and yet decide that she does in fact have a valid copyright claim regardless!

    Yeah, this case very much seems to be one of 'We already know how we're going to rule, now we just need to work backwards and figure out how to justify it'.

     

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  145.  
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    Anonymous Coward, Mar 3rd, 2014 @ 12:54pm

    Re: Re: Re: Re: Re: Which fundamental principles would those be?

    It's not that simple. If you have any citation to law suggesting that it *is* that simple, I would love to see them.

     

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  146.  
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    Anonymous Coward, Mar 3rd, 2014 @ 1:02pm

    Re: Re: Re: Mostly a good, tightly reasoned opinion

    Also, Mike, I have always suspected a pronounced selection bias in the IP experts you speak to, and I think the statement that everyone you spoke with thinks the ruling is bad supports that notion.

    The foremost copyright scholar in the country (David Nimmer) and the professor who has written the most comprehensive journal article on this topic that I'm aware of (Jay Dougherty) seem to agree with the ruling.

    I like reading Techdirt, but this is emblematic, in my view, of the groupthink bubble that permeates this site.

     

    reply to this | link to this | view in thread ]

  147.  
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    Anonymous Coward, Mar 3rd, 2014 @ 1:03pm

    Re: Re: Re: Re: Re: Re: Mostly a good, tightly reasoned opinion

    w/r/t songwriters, I meant the jury is still out as to whether work-made-fore-hire agreements would be enforced (e.g., whether a song written for inclusion on an album could be considered a contribution to a collective work).

     

    reply to this | link to this | view in thread ]

  148.  
    identicon
    Anonymous Coward, Mar 4th, 2014 @ 4:45am

    Re: Re: I love this ruling

    Nope, just having fun with liberals. They are such easy targets.

     

    reply to this | link to this | view in thread ]


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