Phew. For quite some time now we've been following the curious case of Cindy Garcia
, who by all accounts was duped into being an actress in a film that was eventually sorta/partially released on YouTube as "Innocence of Muslims" and was cited by some as causing violence around the globe (a claim that others dispute). Garcia, for perfectly good reasons, was not happy to be appearing in a controversial film that was entirely different than the film she thought she was in. However, she then tried to use copyright
law to take the film down. This seemed laughable on its face, and the district court quickly dismissed it. To the surprise and horror of many, however, on appeal, the 9th Circuit, led by Judge Alex Kozinski, overturned widely settled law for decades and claimed that the copyright claim was valid
and further ordered Google/YouTube to block every copy of the movie -- which most people thought was a clear case
of prior restraint against the First Amendment.
After some back and forth, the 9th Circuit agreed to rehear the case
with a full slate of 11 judges (en banc). The case was heard
late last year and just today, the 9th Circuit dissolved its previous ruling
and is now upholding the district court ruling against
Garcia. Judge Kozinski dissented, not surprisingly. Disclaimer
: We filed an amicus brief
in this case as well.
The ruling, written by Judge Margaret McKeown gets right to the point, copyright is not supposed to be used for outright censorship:
In this case, a heartfelt plea for personal protection is
juxtaposed with the limits of copyright law and fundamental
principles of free speech. The appeal teaches a simple
lesson—a weak copyright claim cannot justify censorship in
the guise of authorship.
As pretty much everyone has noted, the court also points out that it's sympathetic to the position that Garcia was put in by events out of her control. However, that is no excuse for abusing copyright law for the sake of censorship.
We are sympathetic to her plight. Nonetheless,
the claim against Google is grounded in copyright law, not
privacy, emotional distress, or tort law, and Garcia seeks to
impose speech restrictions under copyright laws meant to
foster rather than repress free expression. Garcia’s theory can
be likened to “copyright cherry picking,” which would enable
any contributor from a costume designer down to an extra or
best boy to claim copyright in random bits and pieces of a
unitary motion picture without satisfying the requirements of
the Copyright Act. Putting aside the rhetoric of Hollywood
hijinks and the dissent’s dramatics, this case must be decided
on the law.
And, what that means is that Garcia has no copyright interest just because she appeared in the film. The court repeatedly notes (as did many others) that even the US Copyright Office denied
Garcia's attempt to copyright her performance. And, further, notes that if the court were to accept Garcia's claim it would create quite a mess for copyright law:
Garcia’s theory of copyright law would result in the legal
morass we warned against in Aalmuhammed—splintering a
movie into many different “works,” even in the absence of an
independent fixation. Simply put, as Google claimed, it
“make[s] Swiss cheese of copyrights.”
Take, for example, films with a large cast—the proverbial
“cast of thousands”—such as Ben-Hur or Lord of the
Rings. The silent epic Ben-Hur advertised a cast of 125,000
people. In the Lord of the Rings trilogy, 20,000 extras
tramped around Middle-Earth alongside Frodo Baggins
(played by Elijah Wood). Treating every acting performance
as an independent work would not only be a logistical and
financial nightmare, it would turn cast of thousands into a
new mantra: copyright of thousands.
The court actually spends a lot of time on this, noting what a ridiculous situation it would make for the entire movie industry, which again raises serious questions about why the MPAA chose not to
participate in this case.
the complex, difficult-to-access, and often phantom chain of
title to tens, hundreds, or even thousands of standalone
copyrights is a task that could tie the distribution chain in
knots. And filming group scenes like a public parade, or the
1963 March on Washington, would pose a huge burden if
each of the thousands of marchers could claim an
Even beyond the whole swiss cheese thing, the court rightly points out that copyright is given to those who "fix" the work in a tangible medium, and Garcia did, well, none of that:
Garcia’s copyright claim faces yet another statutory
barrier: She never fixed her acting performance in a tangible
medium, as required by 17 U.S.C. § 101 (“A work is ‘fixed’
in a tangible medium of expression when its embodiment in
a copy or phonorecord, by or under the authority of the
author, is sufficiently permanent or stable to permit it to be
perceived, reproduced, or otherwise communicated for a
period of more than transitory duration.”) (emphasis added).
According to the Supreme Court, “the author is the party who
actually creates the work, that is, the person who translates an
idea into a fixed, tangible expression entitled to copyright
protection.” .... Garcia did nothing of the sort.
For better or for worse, Youssef and his crew “fixed”
Garcia’s performance in the tangible medium, whether in
physical film or in digital form. However one might
characterize Garcia’s performance, she played no role in
fixation. On top of this, Garcia claims that she never agreed
to the film’s ultimate rendition or how she was portrayed in
Innocence of Muslims, so she can hardly argue that the film
or her cameo in it was fixed “by or under [her] authority.”
Finally, even though it notes it does not need to, the court addresses the question of "irreparable harm" which was a key part of Kozinski's original ruling. Here, the court rightly points out that, while Garcia may face harm, it's not because of the copyright
and abusing copyright law to protect against such harm is not what the law allows.
Although we do not take lightly threats to life or the
emotional turmoil Garcia has endured, her harms are
untethered from—and incompatible with—copyright and
copyright’s function as the engine of expression.
In broad terms, “the protection of privacy is not a function
of the copyright law. . . . To the contrary, the copyright law
offers a limited monopoly to encourage ultimate public
access to the creative work of the author.”
The court further cites cases such as Scientology abusing copyright to try to suppress a study and Hulk Hogan suing Gawker to suppress a sex tape, to show that, while many people seek to abuse copyright law in this manner, it is totally inappropriate.
And then there's this:
Ultimately, Garcia would like
to have her connection to the film forgotten and stripped from
YouTube. Unfortunately for Garcia, such a “right to be
forgotten,” although recently affirmed by the Court of Justice
for the European Union, is not recognized in the United
And, finally, the ruling smacks around the original injunction from Kozinski for its clear First Amendment problems:
The takedown order was unwarranted and incorrect as a
matter of law, as we have explained above. It also gave short
shrift to the First Amendment values at stake. The mandatory
injunction censored and suppressed a politically significant
film—based upon a dubious and unprecedented theory of
copyright. In so doing, the panel deprived the public of the
ability to view firsthand, and judge for themselves, a film at
the center of an international uproar.
[....] The panel’s
takedown order of a film of substantial interest to the public
is a classic prior restraint of speech..... Prior restraints pose the “most serious and
the least tolerable infringement on First Amendment rights,”... and Garcia cannot overcome the historical and heavy presumption against such restraints with a thin
copyright claim in a five-second performance.
Well done, 9th Circuit. Of course, it's still bizarre it took you two tries to get it right.
There is a "concurring" opinion from Judge Paul Watford, in which he argues the majority decision went too far in making broad claims, and he would have preferred a more narrow (and less useful) ruling, focusing solely on the "irreparable harm" question and leaving aside the entire (important) question of whether or not Garcia had any copyright interest in the film. Thankfully, the majority of the panel did not agree with him.
And, finally, we get to Kozkinski's panicked defense of his own original ruling:
Garcia’s dramatic performance met all of the
requirements for copyright protection: It was copyrightable
subject matter, it was original and it was fixed at the moment
it was recorded. So what happened to the copyright? At
times, the majority says that Garcia’s performance was not
copyrightable at all. And at other times, it seems to say that
Garcia just didn’t do enough to gain a copyright in the scene.
Either way, the majority is wrong and makes a total mess of
copyright law, right here in the Hollywood Circuit.
Wait, what? The 9th Circuit is "the Hollywood Circuit?" I mean, sure, technically Hollywood is in the 9th Circuit, but...
In its haste to take internet service providers off the hook for
infringement, the court today robs performers and other
creative talent of rights Congress gave them. I won’t be a
party to it.
Kozinski is wrong. As most of the rest of the court and the Copyright Office and tons of copyright experts all seem to recognize, Garcia has no copyright interest in her performance. She did not fix it in a tangible medium. Kozinski goes on to argue that this
ruling is what will create a true mess of copyright law:
The implications are daunting. If Garcia’s scene is not a
work, then every take of every scene of, say, Lord of the
Rings is not a work, and thus not protected by copyright,
unless and until the clips become part of the final movie. If
some dastardly crew member were to run off with a copy of
the Battle of Morannon, the dastard would be free to display
it for profit until it was made part of the final movie. And, of
course, the take-outs, the alternative scenes, the special
effects never used, all of those things would be fair game
because none of these things would be “works” under the
majority’s definition. And what about a draft chapter of a
novel? Is there no copyright in the draft chapter unless it gets
included in the published book? Or if part of the draft gets
included, is there no copyright in the rest of it?
I think the majority ruling does a damn good job responding to this point, by pointing out that it's "moral outrage and colorful language" more than legal analysis:
The dissent spins speculative hypotheticals about
copyright protection for book chapters, movie outtakes,
baseball games, and Jimi Hendrix concerts. See Dissent at
35, 38. This hyperbole sounds a false alarm. Substituting
moral outrage and colorful language for legal analysis, the
dissent mixes and matches copyright concepts such as
collective works, derivative works, the requirement of
fixation, and sound recordings. The statutory definitions and
their application counsel precision, not convolution.
All in all, while it's ridiculous that we had to go through this in the first place, after quite some time, the court finally got it right, no matter what Kozinski has to say.