Welcome back, viewers, to another segment in our "How To Look Like A Complete Legal Know Nothing While Also Making Sure You Keep Streisand-ing Yourself Into Oblivion" series of posts here at Techdirt (we're working hard on a new segment name; sorry). Remember when we urged YouTube to not censor
the controversial hate-film, "Innocence Of Muslims"? And then do you remember how one of the film's actresses, Cindy Garcia, went bonkers in California state court, seemingly alleging everything
she could think of against the film's producers in attempt to force YouTube to take the film down? Remember how everyone was surprised to hear a story involving censorship that didn't
have a copyright element to it?
Well, to hell with your surprise, because Cindy Garcia is back in a federal way, and she just claimed copyright infringement
(PDF) over her performance and filed DMCA notices to get the film taken down. As Marc Randazza hilariously notes
, this is plainly stupid.
An actor’s performance in a film is not an independently copyrightable work. I am surprised that these two attorneys are unfamiliar with this rule of law. They might be well-served to review Aalmuhammed v. Lee, 202 F.3d 1227 (2000). You know, the case that is in pretty much every single copyright textbook published since before the Clinton administration ended. Jesus fucking christ, is it so much to ask that someone take a copyright course before filing a copyright infringement lawsuit?
And that really should be the end to the copyright claim, but certainly not to the liability Garcia may find herself under for attorney and legal fees should she have an anti-SLAPP suit filed against her. The claim here, copyright and otherwise, are obviously made in attempt to get the film, i.e. speech, taken down. No one with even a modicum of understanding of copyright law and precedent could possibly think that she owns the copyright on either the film or her performance. This is settled law. Only the director is recognized as having creative control and, thus, the original copyright on the work. The MPAA and WIPO may be touting new monopoly powers
for actors to dictate how their performances are expanded upon, but that wouldn't apply here. And, lest you naively think that this is just Cindy Garcia, non-lawyer, almost-actress being all spurious and whatnot, she has an actual legal team working with her on this, and there is no evidence as of yet that this legal team is actually composed of drunk orangutans. These theoretically non-ape lawyers also have some curious notions about the laws and how this nation operates. The following is from their press release.
“We are seeking the legally appropriate mechanism and the least politically controversial one to allow Google and YouTube to do the right thing,” according to M. Cris Armenta, counsel to Ms. Garcia. “Again, this is not a First Amendment case. But, the First Amendment does protect American’s [sic] rights to freedom to express, and also the right to be free from expression.” In Ms. Garcia’s case, the words that were dubbed over her performance were not hers and she finds them personally and profoundly offensive. Ms. Garcia has publicly stated worldwide, including in live broadcasts to Middle Eastern television stations that she does not condone the message in the film and would never willingly participate in such a hateful venture.
If this does not amount to an immediate rescinding of Armenta's license to practice law, that's a major problem. This is not
legally appropriate and it is
politically controversial because you're looking to censor speech because your client didn't bother to understand what she was getting into. I'll note again, as I did in my last post concerning Ms. Garcia, that neither she, nor her fellow enraged actors and actresses, were equally enraged for the 4 months or so the trailer was on YouTube before
the mainstream media had picked the story up and the protests had begun. Her legal team can dictate all they want that this is not a First Amendment case, but simply saying so doesn't make it so.
Though, I suppose I should not be shocked that Armenta doesn't understand that this is
a First Amendment case when he apparently doesn't really know what the First Amendment is. That line up there? The one that includes him telling us how the First Amendment protects our "right to be free from expression"? In case you were wondering, that's made up. There is more reality in the Twilight series than there is in that statement.
So, while I too find the film to be offensive both in taste and in some truly awful production qualities, I hope the film's producer has a competent enough attorney to anti-SLAPP the crap out of Garcia's copyright suit. The fact of the matter is that the movie business wouldn't be able to survive if the court said individual actors owned the copyrights on their own performance.