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.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:
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.
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....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:
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.
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.That seems like a huge stretch, and one totally unrelated to the copyright issue, again setting a dangerous precedent for future copyright abuses.
She’s made such a showing. Youssef’s unauthorized inclusion of her performance in “Innocence of Muslims” undisputedly led to the threats against Garcia.
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.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.
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.
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Filed Under: alex kozinski, cindy garcia, copyright, free speech, innocence of muslims, prior restraint
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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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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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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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That doesn't mean there wasn't a contract, though.
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Which fundamental principles would those be?
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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Re: Which fundamental principles would those be?
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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Re: Re: Which fundamental principles would those be?
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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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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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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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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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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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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Shocking, I know.
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Statistics
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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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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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Re: Re: Re: Re: Which fundamental principles would those be?
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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Re: Re: Which fundamental principles would those be?
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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That may sound like a cop out, but it's true.
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Try to score logical points, not rhetorical or theatrical.
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I look forward to your actual reply if you decide to make one...
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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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It sure does.
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Hollywood to the Rescue?
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It doesn't mean anything like that.
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Re: Hollywood to the Rescue?
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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Re: Re: Hollywood to the Rescue?
Butter the popcorn, people, this is going to be at least as much fun as Prenda.
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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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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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At any rate, it sounds like there was no written contract.
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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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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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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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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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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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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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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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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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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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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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Re: Work-for-hire-ness
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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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Um, did the film maker actually pay Garcia for her performance(s)?
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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Re: Um, did the film maker actually pay Garcia for her performance(s)?
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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Re: Re: Um, did the film maker actually pay Garcia for her performance(s)?
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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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Re: Who is the coward that speaks
I just caame out to clear my name and this whole thing has been a night mare for me. I went to a audition got the part for Dessert Warrior a a mother , U all make me sick
Cindy Garcia
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Re: Re: Who is the coward that speaks
Hello Ms. Garcia,
First off, I am going to assume that you are really who you say you are and not just some random person typing your name in the name field.
Please don't confuse the sentiments stated here on Techdirt as being against your situation. From the comments I've read, most here actually do have sympathy towards you and your plight of being duped by this unscrupulous producer.
Our problem lies with the court's twisting of current copyright laws far beyond the accepted norm to alleviated this situation for you. That, in my humble opinion, is far worse for our society than one actress appearing in something she really doesn't wish to be associated with.
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was that on purpose?
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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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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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Ms. Streisand? Your table's ready.
Don't get me wrong. I'm not supporting the film. I'm resisting this obvious judicial overreach.
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Excellent
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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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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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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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I'd rather court decisions were made based on facts, evidence, and the law, rather than speculative appeals to emotion.
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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.
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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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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Going out on a limb here
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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Re: Going out on a limb here
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I love this ruling
Oh, btw, it was Obama who blamed the movie for Benghazi. You seemed to tap dance around that. ;)
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Re: I love this ruling
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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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Re: Mostly a good, tightly reasoned opinion
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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Re: Mostly a good, tightly reasoned opinion
Sounds like more of a defamation case than copyright.
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Re: Mostly a good, tightly reasoned opinion
Can you say overwrought?
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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.
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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Re: Re: Mostly a good, tightly reasoned opinion
Um...have you not read my posts? :)
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Re: Re: Re: Mostly a good, tightly reasoned opinion
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.
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Re: Re: Mostly a good, tightly reasoned opinion
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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Re: Mostly a good, tightly reasoned opinion
Quick point before class.
In reality, the law explicitly states that actors (and cinematographers, etc.) don't hold a copyright interest in a film:
- 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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Re: Re: Mostly a good, tightly reasoned opinion
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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Re: Re: Re: Mostly a good, tightly reasoned opinion
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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Re: Re: Re: Re: Mostly a good, tightly reasoned opinion
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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Re: Re: Re: Re: Re: Mostly a good, tightly reasoned opinion
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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Re: Mostly a good, tightly reasoned opinion
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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Re: Re: Mostly a good, tightly reasoned opinion
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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Re: Mostly a good, tightly reasoned opinion
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Prior restraint
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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If you can explain how this decision is even two of those things, I'll be surprised.
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Great ruling the Court
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Re: Great ruling the Court
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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Re: Great ruling the Court
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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Re: Great ruling the Court
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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Re: Great ruling the Court
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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Re: Great ruling the Court
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Re: Great ruling the Court
Does not compute.
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Re: Great ruling the Court
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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Re: Great ruling the Court
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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Has anybody actually seen this movie?
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Re: Has anybody actually seen this movie?
Want me to upload it somewhere?
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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.
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Re: Re: Re: Has anybody actually seen this movie?
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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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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https://law.resource.org/pub/us/case/reporter/F2/927/927.F2d.132.90-5623.90-5622.html
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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:
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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Analysis by Eric Goldman and Venkat Balasubramani
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:
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Re: Analysis by Eric Goldman and Venkat Balasubramani
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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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Now I am confused, is it the idea or the execution?
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