Innocence Of Muslims Actress Says Court Should Ignore Copyright Office Rejecting Her Copyright Claim

from the well,-duh dept

Fri, Apr 4th 2014 8:30am — Mike Masnick

This will hardly come as a surprise, but Cindy Lee Garcia -- the actress who appeared in 5 seconds of the 13-minute "trailer" known as "Innocence of Muslims" and somehow convinced the 9th Circuit Appeals court to say she had a copyright interest in the film, allowing her to demand a widespread and highly questionable order to force Google to take down all copies of the video on its platforms -- doesn't think there's anything wrong with the ruling or with the 9th Circuit's denial of Google's request to stay the order until the case could be reconsidered. As we noted earlier, the court has asked for briefs on whether or not it should reconsider the request for the stay (prior to even deciding if it should reconsider the entire ruling). Garcia's lawyer, Cris Armenta has filed their brief on this issue, and as with many earlier filings, it is problematic on many levels.

In short, though, she of course argues that the original ruling was correct, that her "copyright" has been infringed and that any ruling to the contrary leaves her in great danger. Despite plenty of copyright lawyers and experts reacting in horror to the original ruling, she insists it's obvious that every actor in a film gets a copyright in their own performance. As for the fact that the Copyright Office itself rejected her copyright claim saying that "longstanding practices do not allow a copyright claim by an individual actor or actress in his or her performance contained within a motion picture," Garcia says that the court should just ignore all that bluster. I mean, really, who does the Copyright Office think it is, anyway? Actually, she first challenges the "questionable provenance" of the Copyright Office's rejection of her copyright, since she says Google got a copy before she did, and then that it apparently doesn't include a statement from the Copyright Office that it "is a true and correct copy of the record in question." Even then, she begs the court to ignore the Copyright Office.

Further, this court should not defer to the letter because it is inconsistent with the Copyright Office's previous interpretation of the Copyright Act.... Previously, the Copyright Office interpreted the Copyright Act much differently than it does now. As recently as 2010, the Office explicitly stated that performances consisting of "the art of imitating or acting out situations, characters, or other events" are copyrightable as pantomime.

Of course, that's a totally different issue. Yes, the Copyright Office says that pantomimes are copyrightable (a different issue that has its own problems), but that's unrelated to the question of whether an actor in a motion picture retains the copyright in their performance. Instead, Garcia tries to reverse this question, by saying that nowhere has the Copyright Office ever said that actors do not get a copyright in their performance. Because anything the Copyright Office doesn't say is clearly what they allow.

With respect to the issue of motion pictures, nowhere does the Compendium state that actors who are not employees and who have not transferred the rights in their work are not entitled to copyright protection.... Indeed, the Compendium only states that a film's producer is the "author" for purposes of copyright in situations where the participants are employees or have entered into work-for-hire agreements. If the Office's "longstanding practices" truly forbade an actor who never assigned the rights in her performance from asserting copyright, the Office would have mentioned those practices before now.

Of course, the other problem with Garcia's filing is that it doesn't actually focus on the issue at hand. The Court specifically asked that the filings focus on the question of whether or not an en banc panel should rehear the question of a stay for the injunction. Garcia's filing focuses on the overall ruling, not the specifics of the stay, and why the initial injunction can't be stayed until further proceedings occur. That said, given the way Kozinski has handled this so far, who knows what will happen.

GarciaEnBancOpposition (PDF)GarciaEnBancOpposition (Text)

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Filed Under: 9th circuit, alex kozinski, cindy garcia, cindy lee garcia, copyright, copyright office, injunction, innocence of muslims
Companies: google, youtube

33 Comments

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silverscarcat (profile), 4 Apr 2014 @ 1:00am

This is...
Going to be one incredibly long and messed up state of affairs, isn't it?
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- Mike Masnick (profile), 4 Apr 2014 @ 7:32am
  
  Re: This is...
  Going to be one incredibly long and messed up state of affairs, isn't it?
  
  You have a future in fortune telling.
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  - G Thompson (profile), 4 Apr 2014 @ 8:57pm
    
    Re: Re: This is...
    He knew that already ;)
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- Ninja (profile), 4 Apr 2014 @ 7:40am
  
  Re: This is...
  I'd argue that it's more "messed up" than "long". Hopefully it will land on a judge who understands the implications of letting Garcia have her way.
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  - fogbugzd (profile), 4 Apr 2014 @ 8:05am
    
    Re: Re: This is...
    >>Hopefully it will land on a judge who understands the implications of letting Garcia have her way.
    
    Given the current state of affairs, I have slim hope of any currently sitting judge understanding copyright or the implications of bad copyright rulings. However, there is a very good chance the judge will be an ex-MPAA attorney, and I'm sure the MPAA wants this ruling to go away as quickly as possible.
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    - Ninja (profile), 4 Apr 2014 @ 9:38am
      
      Re: Re: Re: This is...
      Yep, this is one of those few times the MAFIAA will want to help the tech industry put the thing down.
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      - Anonymous Coward, 4 Apr 2014 @ 10:08am
        
        Re: Re: Re: Re: This is...
        makes it kinda hard to root for either side, doesn't it? on one hand, I like the idea of what a success will do to the MAFIAA, on the other hand I don't want to see copyright get even more broken.
        
        But then, If copyright gets finally broken enough, maybe that will be the point where something useful is done about it.
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        Ninja (profile), 4 Apr 2014 @ 11:16am
        
        Re: Re: Re: Re: Re: This is...
        You got a point. Maybe if it breaks enough change will be forced.
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        James Jensen (profile), 4 Apr 2014 @ 2:04pm
        
        Re: Re: Re: Re: Re: Re: This is...
        I'm reminded of a group of anarchists who met with a staunchly right-wing politician to give their support to his re-election, saying they were afraid if his opponent won people might get the idea that government could be effective.
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- Anonymous Coward, 4 Apr 2014 @ 1:11pm
  
  Re: This is...
  work for hire
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Just Another Anonymous Troll, 4 Apr 2014 @ 8:45am

"Because anything the Copyright Office doesn't say is clearly what they allow."
The copyright office doesn't say I'm not allowed to shove her into a rocket and launch her into space, so I guess that's OK! Have a nice, long trip, Miss Garcia!
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Anonymous Coward, 4 Apr 2014 @ 9:07am

"In short, though, she of course argues that the original ruling was correct, that her "copyright" has been infringed and that any ruling to the contrary leaves her in great danger. Despite plenty of copyright lawyers and experts reacting in horror to the original ruling, she insists it's obvious that every actor in a film gets a copyright in their own performance."

I for one hope that the ruling stands as was just made recently or ruled to make that every actor has a copyright in their own performance. The reason i say this is because the MPAA will no doubt have a tantrum far greater than any nuclear explosion being as it will loosen their overall control of copyright of a film with now having actors having copyright on their own performance of that film if actors were given copyright on their own performance.
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Anonymous Coward, 4 Apr 2014 @ 9:38am

Unfortunately there appears to be no basis in law to adjudicate the basic problem of misrepresentation that allows someone to use an actor against their will in a film in such a way that the effect is to place a WANTED DEAD OR NOT ALIVE warrant on their existence.

Should one have an inherent copyright that prevents their being used against their will as target practice in a religious war of jihad?
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- PRMan, 4 Apr 2014 @ 12:27pm
  
  Re:
  There are plenty of documentaries and news articles where people are misrepresented against their will. How much moreso in fiction, where you are helping someone bring their vision to life?
  
  (Or is this attempting to be a docudrama? I haven't seen it.)
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- Anonymous Coward, 4 Apr 2014 @ 1:10pm
  
  Re:
  Fatwa or it didn't happen.
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- G Thompson (profile), 4 Apr 2014 @ 9:01pm
  
  Re:
  >>> [T]here appears to be no basis in law to adjudicate the basic problem of misrepresentation that allows someone to use an actor against their will
  
  So she was under forced duress now to actually take part in the film?
  
  You, like her and her attorney are an idiot
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- Vikarti Anatra (profile), 4 Apr 2014 @ 11:35pm
  
  Re:
  'great danger' is one thing
  copyright issues are another
  
  Why wintess protection program couldn't be used here to prevent 'great danger'?
  Also, why ones who send threats to her could be dealt with using arleady existing laws?(Hate speech,etc)
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RD, 4 Apr 2014 @ 10:03am

This is what you get
This is what you get when you instill an "ownership" mentality into the general populace. Absurd, unprecedented overreach of the extent of copyright coverage. And it will not change until a case like this is aimed squarely at a major rights holder (perhaps like the recent Disney case) who ends up on the losing end of ridiculous copyright claims. Then, maybe, just maybe, the Bigs will get a clue and things will change. Then again, they will just throw money at it and make it go away without any precedent being set, because thats what money allows you to do: shuffle aside anything that doesn't agree with your world view.
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Anonymous Coward, 4 Apr 2014 @ 10:26am

Fraudulent copyright notice
(c) Fraudulent copyright notice.

Any person who, with fraudulent intent, places on any article a notice of copyright or words of the same purport that such person knows to be false, or who, with fraudulent intent, publicly distributes or imports for public distribution any article bearing such notice or words that such person knows to be false, shall be fined not more than $ 2,500.
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Anonymous Coward, 4 Apr 2014 @ 11:17am

I wonder if the poor misguided girl will ever get another acting job.
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- PRMan, 4 Apr 2014 @ 12:28pm
  
  Re:
  Never, I'm pretty sure.
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- Anonymous Coward, 4 Apr 2014 @ 2:28pm
  
  Re:
  I'm pretty certain that her attempts to "save" her reputation has destroyed it even more and the way of doing so killed any possible career in acting as an added bonus.
  
  just think about it, how many people knew or gave a shit about her being in this movie? How many do know now and DO give a shit?
  
  streisand effect at its best...
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NoOne, 4 Apr 2014 @ 11:29am

Everything which is not forbidden is allowed is a constitutional principle of English law
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- G Thompson (profile), 4 Apr 2014 @ 9:06pm
  
  Re:
  it's based on Nulla poena sine lege (No penalty without a low) and is a basic doctrine in law of any type.
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  - G Thompson (profile), 4 Apr 2014 @ 9:08pm
    
    Re: Re:
    low=law.
    
    Muwahahaha
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Anonymous Coward, 4 Apr 2014 @ 1:22pm

Manifest error
As we noted earlier, the court has asked for briefs on whether or not it should reconsider the request for the stay (prior to even deciding if it should reconsider the entire ruling).

On March 13th, 2014, Techdirt posted an article by Mike Masnick, which covered the parties responses to the court's demand for briefs on the issue of reconsidering the stay.

The court ordered that briefing in docket entry 46 (3/06/2014). (Techdirt story of March 6, 2014).

In your March 13th story, Techdirt embedded a copy of docket entry 49 (3/12/2014), �Appellant Cindy Lee Garcia's Brief In Response To Sua Sponte Briefing Order Re Stay�

Of course, the other problem with Garcia's filing is that it doesn't actually focus on the issue at hand.

In this Techdirt article, you have embedded a copy of Docket Entry 75 (4/03/2014), �Appellant Garcia's Response To Petition For Rehearing En Banc�.

The Court specifically asked that the filings focus on the question of whether or not an en banc panel should rehear the question of a stay for the injunction. Garcia's filing focuses on�

So, your complaint is that docket entry 75, embedded in this story, is manifestly NOT docket entry 49, embedded in your previous story. Who's responsible for that?
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James Jensen (profile), 4 Apr 2014 @ 1:52pm

�especially copyrights that don't exist.
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- James Jensen (profile), 4 Apr 2014 @ 1:53pm
  
  Re:
  Huh. This was supposed to be titled "Mike Masnick hates it when copyright is enforced�" C'est la vie.
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  - OldGeezer (profile), 4 Apr 2014 @ 9:37pm
    
    Re: Re:
    Copyright is enforced? OK, lets give everyone that had any part in films or TV individual copyright privileges. Actors, producers, writers, cameramen, carpenters, painters, drivers, foley artists, payroll, caterers, any musician whose work was used. Where do we stop? Each would have the right to license where it would be shown, negotiate a price, enforce any infringements etc. As bad as copyright law is screwed up at least we don't have this nightmare. She was rightly DENIED any copyright claim.
    [ link to this | view in chronology ]
    - James Jensen (profile), 5 Apr 2014 @ 9:04am
      
      Re: Re: Re:
      Sadly, the lack of title messed up the joke.
      
      It was supposed to read: "Mike Masnick hates it when copyright is enforced... especially copyrights that don't exist."
      [ link to this | view in chronology ]
      - OldGeezer (profile), 5 Apr 2014 @ 10:32am
        
        Re: Re: Re: Re:
        Oh, OK I see now that you were`just joking. I thought you were like that troll that attacks every word Mike says.
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OldGeezer (profile), 4 Apr 2014 @ 5:43pm

Perhaps Cindy Lee Garcia should have given more thought to whether it was wise to appear in a film that would obviously be insulting to Muslims. This "religion of peace" started bloody riots where hundreds died because of a few cartoons. They hijack jetliners and fly them into skyscrapers. That day huge throngs of people all over the Mid East were celebrating and cheering when the towers collapsed. They wear bomb vests and set them off on crowded buses and markets not even caring that children will be killed. Even pregnant women have committed suicide attacks. These "martyrs" are regarded as heroes and their photos are posted on billboards celebrating their bravery. Muslim organizations provide support for the families of suicide bombers. NOT REALLY THE KIND OF PEOPLE THAT YOU WANT TO PISS OFF. Does she think the Muslims that want to kill her will just forgive and forget because of her futile attempt to suppress this video?
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- Pragmatic, 9 Apr 2014 @ 8:21am
  
  Re:
  @ OldGeezer, her performance was overdubbed. Imagine being told you're appearing in a washing liquid commercial. You point to a pile of dirty dishes to indicate how awesome this domestic cleaning product is... it will surely make all that go away.
  
  Now imagine finding it on YouTube with another voice coming out of your mouth in which you say, "John Doe is a slovenly hoarder. As a tenant, he's your worst nightmare. Just look at the mess he left in this kitchen. Any he never paid a dime in rent!"
  
  How would you feel? You carried out the acting gig in good faith that you were representing a cleaning product, now you're being depicted as slandering some random Joe.
  
  Now imagine opening your mail. Joe has lawyered up...
  
  Copyright issues? Nope. But a whole lot of other laws are applicable here, and Garcia needs to avail herself of those.
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