Appeals Court Gets It Right The Second Time: Actress Had No Copyright Interest In 'Innocence Of Muslims'

from the took-'em-long-enough dept

Mon, May 18th 2015 10:32am — Mike Masnick

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.

Untangling 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 independent copyright.

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 States.

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.

197 Garcia en Banc Opinion (PDF)197 Garcia en Banc Opinion (Text)

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Filed Under: 9th circuit, alex kozinski, cindy garcia, copyright, free speech, injunctions, innocence of muslims, irreparable harm, prior restraint
Companies: google, youtube

62 Comments

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Edward Teach, 18 May 2015 @ 10:45am

Kozinski's next copyright case
I'll be you 20 Guineas that Judge Kozinski's next copyright case ends up a total mess, because of the Judge. He started with an odd view of copyright-as-idea-ownership, and he will only be embittered by the en banc smackdown. God Help the next pitiful peasant who ends up on the wrong side of a copyright case in Kozinski's courtroom!
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Will "scifantasy" Frank (profile), 18 May 2015 @ 10:47am

The Hollywood Circuit
Wait, what? The 9th Circuit is "the Hollywood Circuit?" I mean, sure, technically Hollywood is in the 9th Circuit, but...

Kozinski said before that, "for better or worse, we are the Court of Appeals for the Hollywood Circuit."

Of course, that was when he was dissenting from the Ninth Circuit's decision to uphold the rights of an actress (Vanna White) against someone making money off of her likeness (Samsung Electronics).
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- Anonymous Coward, 18 May 2015 @ 2:29pm
  
  Re: The Hollywood Circuit
  Of course, that was when he was dissenting from the Ninth Circuit's decision to uphold the rights of an actress (Vanna White) against someone making money off of her likeness (Samsung Electronics).
  
  It was a robot wearing a wig and turning some letters. Vanna White's actual likeness was not involved. Might as well have been Barry White in drag.
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antidirt (profile), 18 May 2015 @ 10:56am

Disclaimer: We filed an amicus brief in this case as well.

The court loved your CDA Sect. 230 argument. It was central to its opinion. Congrats! You were such a big help to the court. The perfect amicus.
[ link to this | view in chronology ]
- PaulT (profile), 18 May 2015 @ 11:23pm
  
  Re:
  Got nothing again, huh?
  [ link to this | view in chronology ]
  - Anonymous Coward, 19 May 2015 @ 1:07am
    
    Re: Re:
    Hardly surprising. He got caught making chicken noises in another article. He's grasping.
    [ link to this | view in chronology ]
    - antidirt (profile), 19 May 2015 @ 1:38pm
      
      Re: Re: Re:
      Bawk! :)
      [ link to this | view in chronology ]
      - Anonymous Coward, 19 May 2015 @ 6:31pm
        
        Re: Re: Re: Re:
        And there it is, the most intelligent thing you have to say.
        [ link to this | view in chronology ]
  - Anonymous Coward, 19 May 2015 @ 6:09am
    
    Re: Re:
    "Got nothing again, huh?"
    
    antidirt never does.
    She just whines and whines when she doesn't get her way.
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  - antidirt (profile), 19 May 2015 @ 7:16am
    
    Re: Re:
    What else is there to say? Mike's brief argued that the court should analyze it under the CDA. That's exactly what the court did. It was a brilliant insight. None of the parties even made that argument. But Mike's brilliant legal analysis pointed the court in the right direction. Kudos.
    [ link to this | view in chronology ]
    - PaulT (profile), 19 May 2015 @ 8:00am
      
      Re: Re: Re:
      ...and? He wasn't claiming that he was personally responsible for the verdict, he was disclaiming a personal connection to the case he'd already written about. Not a bad move, especially given some of the more idiotic accusations against him that are often written here.
      
      I don't know why you despise the man so much, but you can't even let it go when you agree that he is right. You can't address anything actually said or achieved about the case itself, so you have to try and turn an 11 word factual comment into a sarcastic personal attack.
      
      The sad thing is, I'm sure you'd be the first to try and spin the amicus brief as something nefarious if he didn't disclose it, or imply that the lack of disclose is itself suspicious. if some of you guys weren't so obsessed about attacking this site for every minor thing you can think of, maybe you'd be listened to a little more when something worth discussing comes along.
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    - Mike Masnick (profile), 19 May 2015 @ 12:51pm
      
      Re: Re: Re:
      Mike's brief argued that the court should analyze it under the CDA. That's exactly what the court did. It was a brilliant insight. None of the parties even made that argument. But Mike's brilliant legal analysis pointed the court in the right direction. Kudos.
      
      The brief was not by me, but by Cathy Gellis, and you're correct that none of the parties made that argument, which is why we felt it was reasonable to raise as an amicus (that's generally where amici *should* step in). We did not expect in anyway that the ruling would turn on that argument, but felt that it was important to get the point made concerning Congress' view on intermediary liability.
      
      We fully expected that the court would rule the way it eventually did on the copyright/First Amendment questions, but wanted to make sure that it was aware of additional issues should it not get that far.
      
      You disagree. And thus, you mock us. Your choice. Seems like a huge waste of energy, but... fair enough.
      [ link to this | view in chronology ]
      - antidirt (profile), 19 May 2015 @ 1:37pm
        
        Re: Re: Re: Re:
        The brief was not by me, but by Cathy Gellis, and you're correct that none of the parties made that argument, which is why we felt it was reasonable to raise as an amicus (that's generally where amici *should* step in). We did not expect in anyway that the ruling would turn on that argument, but felt that it was important to get the point made concerning Congress' view on intermediary liability.
        
        Don't throw Cathy Gellis under the bus. She represented you. You need to take responsibility for everything in the brief. If you "did not expect in anyway that the ruling would turn on" your argument, you shouldn't have wasted the court's time with it. The point of an amicus brief is to help the court decide the legal issues that are actually before it. You're admitting that you argued irrelevant issues. If you were a party to that lawsuit, I imagine the other side would have moved to strike and for sanctions. Your arguments were so frivolous that the court probably would have granted the motions. Congress' ACTUAL view on intermediary liability is that the CDA doesn't apply in copyright cases. You weren't offering Congress' view; you were offering your own, as baseless as it was.
        
        We fully expected that the court would rule the way it eventually did on the copyright/First Amendment questions, but wanted to make sure that it was aware of additional issues should it not get that far.
        
        You wanted to make the court aware of other issues that were not before it? How does that possibly help the court?
        
        You disagree. And thus, you mock us. Your choice. Seems like a huge waste of energy, but... fair enough.
        
        Seems like you wasted the court's time by making completely frivolous and irrelevant arguments. I'd be ashamed to back that brief. I couldn't rationalize wasting precious judicial resources with arguments that have precisely zero chance of helping the court. But that's just me.
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        Mike Masnick (profile), 19 May 2015 @ 3:31pm
        
        Re: Re: Re: Re: Re:
        Thank you for reminding me why it is pointless to engage with you. Twisting my words, misrepresenting what I say completely and then attacking me ridiculously says quite a lot about your own issues.
        
        Best of luck to you.
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        This comment has been flagged by the community. Click here to show it
        
        Anonymous Coward, 19 May 2015 @ 3:57pm
        
        Re: Re: Re: Re: Re: Re:
        Thank you for reminding me why it is pointless to engage with you. Twisting my words, misrepresenting what I say completely and then attacking me ridiculously says quite a lot about your own issues.
        
        Best of luck to you.
        
        LOL! Classic Mike. Make a bunch of excuses rather than discuss anything on the merits. If you think I've twisted your words, misrepresented what you said, or attacked you ridiculously, then explain exactly how I've done so. We both know you will never do so. LMAO!
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        antidirt (profile), 19 May 2015 @ 4:01pm
        
        Re: Re: Re: Re: Re: Re:
        ^^Sorry, that was me. I apparently wasn't logged in. Any issue, any time, anybody backing you up. I'll be there, Mike. You let me know. :)
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        PaulT (profile), 20 May 2015 @ 12:01am
        
        Re: Re: Re: Re: Re:
        "Seems like you wasted the court's time by making completely frivolous and irrelevant arguments"
        
        Whereas, you waste everyone's time (including your own) by obsessing over something trivial, simply because you have nothing to add to the actual discussion at hand. Possibly because you noted that Techdirt was correct about something, and you can't bring yourself to admit that.
        
        As an aside, I find it fascinating that you're obsessing over this fact now, when the assertion in the brief has been proven correct. Yet, despite your obsession with attacking Mike and Techdirt at every possible turn, your "expert" opinion is absent from the article linked in the very words you quoted, where the amicus brief itself is discussed and laid out.
        
        If it's such a clear waste of time, I wonder why your objection is only here now, when the case has ruled in the way Mike suggested it should, and not at the time when the wasteful brief was discussed? Surely, that would have been the time to launch your attack?
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        Anonymous Coward, 20 May 2015 @ 7:45am
        
        Re: Re: Re: Re: Re: Re:
        Good grief, Paul. The joke's not funny if I have to explain it. I was being facetious when I said the court adopted Mike's brilliant argument. If you'd actually read the brief and understood the issues, you'd know that. Mike admitted that his brief argued irrelevant issues when he said "we did not expect in anyway that the ruling would turn on that argument." Mike now claims I'm misrepresenting him, but rather than make any actual arguments, he's making excuses and running away. Standard operating procedure for Mike, I'm afraid. All fluff and no substance.
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        Anonymous Coward, 20 May 2015 @ 8:18pm
        
        Re: Re: Re: Re: Re: Re: Re:
        You actually believe yourself to be funny? Now that's just sad.
        
        No one's going to believe a chicken impersonator, jackass.
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        PaulT (profile), 21 May 2015 @ 1:23am
        
        Re: Re: Re: Re: Re: Re: Re:
        "The joke's not funny if I have to explain it."
        
        The problem here depends on the joker, not the audience. If you have to explain to everyone, perhaps it was just a bad joke.
        
        If that was intended to be funny, it not only wasn't particularly amusing, but yet another example of how people like you can't stand honest discussion about the actual issues. When presented with something you can't oppose, you just have to attack something or someone anyway.
        
        "If you'd actually read the brief..."
        
        I did, last year when that article appeared, which you (assuming you're antidirt) didn't bother to comment upon. Instead, you seized upon an almost irrelevant link in this article to launch an attack on Mike, but not make any comment on the actual story.
        
        At best, it's another pathetic attempt to redirect attention away from the issues being discussed. At worst, it's a truly unhealthy obsession.
        
        "Standard operating procedure for Mike, I'm afraid. All fluff and no substance."
        
        That's a mirror you're looking at, not a window. Perhaps you'd like to consider that you're a bad comedian and would be better served addressing the actual issues discussed? This site is begging for someone who can honestly debate opposing opinions without imitating farm animals and attacking their fantasy version of the article's author.
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    - Mike Masnick (profile), 19 May 2015 @ 12:51pm
      
      Re: Re: Re:
      Mike's brief argued that the court should analyze it under the CDA. That's exactly what the court did. It was a brilliant insight. None of the parties even made that argument. But Mike's brilliant legal analysis pointed the court in the right direction. Kudos.
      
      The brief was not by me, but by Cathy Gellis, and you're correct that none of the parties made that argument, which is why we felt it was reasonable to raise as an amicus (that's generally where amici *should* step in). We did not expect in anyway that the ruling would turn on that argument, but felt that it was important to get the point made concerning Congress' view on intermediary liability.
      
      We fully expected that the court would rule the way it eventually did on the copyright/First Amendment questions, but wanted to make sure that it was aware of additional issues should it not get that far.
      
      You disagree. And thus, you mock us. Your choice. Seems like a huge waste of energy, but... fair enough.
      [ link to this | view in chronology ]
Anonymous Coward, 18 May 2015 @ 10:56am

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

Garcia's scene is a copyrightable work, it's just not her copyrightable work, which is what the majority said. Kozinski's comments seem to indicate the case that he's considering isn't the case that was brought.
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- Anonymous Coward, 18 May 2015 @ 10:59am
  
  Re:
  Kozinski's life work is pleasing himself in the court of law.
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- Anonymous Coward, 19 May 2015 @ 12:41am
  
  Re:
  Garcia's scene is a copyrightable work, it's just not her copyrightable work, which is what the majority said.
  
  Then, her creativity (if we accept there's such here) is automatically someone else's work?
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  - nasch (profile), 19 May 2015 @ 7:13am
    
    Re: Re:
    Then, her creativity (if we accept there's such here) is automatically someone else's work?
    
    Someone else holds the copyright to it, yes.
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  - Anonymous Coward, 19 May 2015 @ 7:37am
    
    Re: Re:
    In this case, yes. She didn't create the fixed media.
    
    As the majority opinion states, each individual contributor to the final product doesn't have a copyright interest in it. An actor doesn't hold copyright in their filmed performance for a "creative choice of inflection and physical posing" any more than the set designer does for their "creative arrangement of furniture" or the costume designer's "creative choice of fabric" or a cinematographer's "creative choice of where to put the cameras."
    
    Are they all creative acts? Sure they are. But none of them are putting the creative act in a fixed form, which is when copyright comes into play. Garcia may very well have a legitimate case here, but it isn't a copyright case.
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    - Anonymous Coward, 19 May 2015 @ 12:17pm
      
      Re: Re: Re:
      I see a major problem with this.
      
      It is actually not true that the recorder of a show gets copyright over the work of those who made the show. The recorder may get copyright in their video, but copyright in the show (if it qualifies) goes to who made it.
      
      If you start improvising/reciting a poem, and I film you, I may get copyright over the video, but not over your poem. It wasn't fixed, mind you, until I fixed it, but if you fix it later on your own (write it on paper), you surely will feel it's YOURS to use and dispose of. Under your (and maybe en banc court's) theory I would, instead, get the right to forbid you from writing your own poem.
      
      Same would go for performances of a ballet, dancing, things that may contain enough creativity to make them copyrightable once they're fixed.
      
      I'm relieved the decision didn't go into the same crazy takedown-of-a-film-for-a-5-second performance. But I'm not convinced the copyright analysis of the court is correct either.
      
      I wonder why didn't they even consider the raw footage as joint work? It seems to make most sense in this mess - copyright alone considered.
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      - nasch (profile), 19 May 2015 @ 1:30pm
        
        Re: Re: Re: Re:
        If you start improvising/reciting a poem, and I film you, I may get copyright over the video, but not over your poem.
        
        You have a copyright over the video and I may or may not have a copyright over the poem (as you say, depending on whether it's been fixed). Nobody has any copyright of my reading of the poem, because that's not copyrightable. The same with acting - the actor's performance isn't copyrightable, only a recording of it is. I'm not necessarily disagreeing with you, just trying to clarify.
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      - PaulT (profile), 19 May 2015 @ 11:50pm
        
        Re: Re: Re: Re:
        "If you start improvising/reciting a poem, and I film you, I may get copyright over the video, but not over your poem"
        
        You really don't see how that's a completely different situation to an actress being hired to enact someone else's script?
        
        I dare say there should be different protections for documentary and similar capture of non-scripted events, but these would most likely be under contract law (as I understand it, that's why every such film has people sign waivers), not copyright.
        
        "I'm not convinced the copyright analysis of the court is correct either."
        
        Why? Also, why is copyright the correct tool to use here for this kind of dispute?
        
        "I wonder why didn't they even consider the raw footage as joint work?"
        
        Because everyone creatively involved with the raw footage from the director, screenwriter and cinematographer to the makeup and costume people would have the same claim, claims which would then be added to by the editor, sound editor and anyone else who creatively contribute to it later - and that's just for the one scene with one actor with no choreography or similar creative input?
        
        Unless you're saying that the only person whose creative input matters in a film is the actor in front of the camera, in which case you're welcome to argue against auteur theory and similar debates which have been occurring since at least the 1950s.
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Whoever, 18 May 2015 @ 11:02am

How can judges be so stupid?
Kozinski misrepresents the majority opinion in a manner that makes him look stupid.

He completely ignores the issue of *who* fixes the work in a tangible medium and claims that the majority opinion is that "fixing" only occurs on assembly of the final movie.

He is an appeals court judge, yet seems to have let his ideological bent override his understanding of the facts.
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James Burkhardt (profile), 18 May 2015 @ 11:04am

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.
Of course, if Garcia's "scene" is an independent work then your court order should have been to takedown copies of Garcia's scene, not copies of the whole of Innocence of Muslims.

This ignores that Garcia's scene was not considered to not be a work, but that it was considered to be a work for which Garcia did not own the copyright. Even if her scene is one in which she alone appeared, she is not the one who 'fixed' it and the person who 'fixed' it was not in her employ. Moreover, that scene was not an individual creation, but a collaboration between her, the director, and the writer. Therefore, it is BY LAW, a work-for-hire, and her employer receives any copyright she would have otherwise recieved.
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- Will "scifantasy" Frank (profile), 18 May 2015 @ 11:07am
  
  Re:
  Of course, if Garcia's "scene" is an independent work then your court order should have been to takedown copies of Garcia's scene, not copies of the whole of Innocence of Muslims.
  
  In fairness, the court order did do that after a modification, but that didn't work either:
  
  In February 2014, the panel majority issued the following injunction: “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.” Soon after, the panel amended the order to state that the prohibition did “not preclude the posting or display of any version of ‘Innocence of Muslims’ that does not include Cindy Lee Garcia’s performance.”
  
  Although the first order was more sweeping, the second cast the court in the uneasy role of film editor. The amendment only mattered if Google assumed authority to change the content of someone else’s copyrighted film. To no one’s surprise, the end result was the same: the entire film remained removed from YouTube.
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  - James Burkhardt (profile), 18 May 2015 @ 11:27am
    
    Re: Re:
    Although the first order was more sweeping, the second cast the court in the uneasy role of film editor. The amendment only mattered if Google assumed authority to change the content of someone else’s copyrighted film. To no one’s surprise, the end result was the same: the entire film remained removed from YouTube.
    Not true, a cut of the film removing the offending performance could have been uploaded without violating the new order, which was the point of making the distiction. The First order was overbroad and unconstitutional and clearly intended to prevent the distribution of the film in general. The clarification helps to narrowly tailor the injuction to only restrict the speech covered by Garcia's copyright. That distinction is very important, and I am actually surprised if that cut never made it onto Youtube or elsewhere.
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    - nasch (profile), 18 May 2015 @ 3:50pm
      
      Re: Re: Re:
      Not true, a cut of the film removing the offending performance could have been uploaded without violating the new order, which was the point of making the distiction.
      
      But Google could not have done that, because that would violate the filmmaker's copyright as an unauthorized derivative work (I doubt it would be fair use). The order was directed at Google if I'm not mistaken, so could not be followed legally - right?
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      - Anonymous Coward, 18 May 2015 @ 4:58pm
        
        Re: Re: Re: Re:
        the point is that prior to the revision, the owner of the innocence of Muslims film could not have recut the film and uploaded it without the offending performance because Google would be forced to take it down. the second order allows Google to retain the film if it lacks the offending performance.
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- Anonymous Coward, 18 May 2015 @ 12:46pm
  
  Re:
  As soon as her performance was deemed a work for hire, the case is over in a country without moral rights in copyright law.
  
  Whether she has or should have other recourse is another question, but current copyright law is not meant be used in this case.
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  - DannyB (profile), 18 May 2015 @ 1:00pm
    
    Re: Re:
    Moral rights in copyright law is an oxymoron.
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Anonymous Coward, 18 May 2015 @ 11:14am

So why do we have Copyright law
The 9th Circuit did get this part right:

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.”
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- Anonymous Coward, 18 May 2015 @ 11:15am
  
  Re: So why do we have Copyright law
  Hah. That's a laugh. My infant kids will be dead before new works enter the public domain. Have to hand it to the Supremes, though, who said that a very, very long period of time is a limited period.
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  - James Burkhardt (profile), 18 May 2015 @ 11:32am
    
    Re: Re: So why do we have Copyright law
    Actually, The statement quoted can be read to have nothing to do with the public domain, and harkens back to the original reasons for copyright, that without it, a creative work might never be fixed and/or released to the public. The monopoly encourages a work to be fixed and made accessible to the public via sale. Now issues with the current state of the 'limited' monopoly are valid, but not really what the Justices are talking about in this statement.
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    - cpt kangarooski, 18 May 2015 @ 12:17pm
      
      Re: Re: Re: So why do we have Copyright law
      Both encouraging the creation and publication of works which would otherwise not be created and published as well as the minimization of copyright so that works enter the public domain as fully and swiftly as possible, are goals of copyright. It's not just one or the other.
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  - Anonymous Coward, 19 May 2015 @ 6:12am
    
    Re: Re: So why do we have Copyright law
    "Have to hand it to the Supremes, though, who said that a very, very long period of time is a limited period."
    
    Sonny Bono's widow (who replaced him in office) wanted "limited" to be "eternity minus one day".
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Christenson, 18 May 2015 @ 11:17am

This is Mike Masnick's Editor Calling
And he says:
Get a load of what the court says about Garcia's claims -- it specifically tells her that the majority's only beef is the copyright claim, and the producer is in jail on something unrelated. It then goes on to discuss tort, defamation, and other ways she has to go after the producers.

I thought that would have been worth excerpting!
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- Anonymous Coward, 18 May 2015 @ 11:27am
  
  Re: This is Mike Masnick's Editor Calling
  This article is more about the abuse of copyright.
  
  You should write an article and post a link, I'd be interested in your conclusions.
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- James Burkhardt (profile), 18 May 2015 @ 11:35am
  
  Re: This is Mike Masnick's Editor Calling
  While mentioned by Mike, the other remedies Garcia have aren't germane to the point of the opinion article and the articles that proceeded it, which is copyright abuse. factoring in that portion of the ruling would have made the article a rambling mess.
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Anonymous Coward, 18 May 2015 @ 12:20pm

> the court rightly points out that copyright is given to those who "fix" the work in a tangible medium

... so how does this affect people who take videos of (eg) hockey games? Or Ballet? Or live concerts?
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- James Burkhardt (profile), 18 May 2015 @ 12:58pm
  
  Response to: Anonymous Coward on May 18th, 2015 @ 12:20pm
  In this case your ticket generally includes the proviso that either you do not video the performance, or that you assign the copyright to [insert entity here]. in either case, you have a contract.
  
  or did you mean official recordings? in which case the camera person is clearly working in a capacity for someone else, and their individual recording is a work for hire, which their contract likely plays out.
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  - nasch (profile), 18 May 2015 @ 3:53pm
    
    Re: Response to: Anonymous Coward on May 18th, 2015 @ 12:20pm
    in either case, you have a contract.
    
    Is that settled law? Doesn't sound to me like boilerplate on the back of a ticket meets the criteria for a valid contract.
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- Anonymous Coward, 18 May 2015 @ 12:59pm
  
  Re:
  They own copyright to what they have fixed. Its gets a little complicated past here.
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- Anonymous Coward, 18 May 2015 @ 1:15pm
  
  Re:
  As far as ballet and concerts are concerned, the copyright issue is primarily in what you do with the recording. If you keep it for yourself, it is most probably fair use.
  
  If you post it online, or otherwise distribute it, it is considered a public performance, which requires a license similar to radio performances, based on the copyright interest in the composition and the lyrics which have already been fixed (in writing).
  
  Outside of copyright, the performers have publicity rights which allows them a certain amount of control of their image and name. There is also likely some contractual rights that you agreed to when you purchased the ticket or entered the premises. There may also be some trademark issues.
  
  Sports games are an interesting case, simply because it is generally accepted that the copyright exists prior to filming, even though nothing is fixed in any medium before then. Providing real time score updates is fine, but live-streaming (or recording and uploading later) are considered copyright infringement. Nobody is quite sure why those things are infringing, but you won't win a court case concerning them.
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  - Dan (profile), 18 May 2015 @ 2:30pm
    
    Re: Re:
    it is generally accepted that the copyright exists prior to filming
    
    Nonsense. Any creative work (the commentary in a sports broadcast qualifies without question; the camera shots/angles/etc. are less obvious, but the "creative" threshold is pretty low) is automatically copyrighted as soon as it is "fixed in a tangible medium of expression." With a live sports broadcast, this happens as the game is broadcast. A nonexistent work (i.e., a game that hasn't happened yet) cannot be, and is not, copyrighted.
    live-streaming (or recording and uploading later) are considered copyright infringement. Nobody is quite sure why those things are infringing,
    
    Equally nonsensical. Anybody who is in the least familiar with copyright law in the United States knows exactly why livestreaming, or recording and later uploading a copyrighted broadcast (see above), without the permission of the copyright holder or another exception like fair use, is copyright infringement.
    
    The game itself isn't, and can't be, copyrighted, unless the league is going to take the position that the game is a creative work (which would necessarily mean that the game is rigged). But any given broadcast is most certainly copyrighted.
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    - Anonymous Coward, 18 May 2015 @ 3:00pm
      
      Re: Re: Re:
      "Any given broadcast is most certainly copyrighted."
      
      Exactly. So if I, as a member of the audience, film it on my own, with my own cameras, there is no use of a copyrighted broadcast. Certainly there might be some issue if I can hear the announcer on my recording, but if I delete the sound, there shouldn't be any copyright interest. And yet, if you bring your own camera to a sporting event and stream it or upload it, you will be successfully sued for copyright infringement (among other things). For no reason that anyone has ever discovered.
      
      You are confusing the use of a broadcast that someone else has taken, which is copyrighted, with a video that I have taken.
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      - nasch (profile), 18 May 2015 @ 3:54pm
        
        Re: Re: Re: Re:
        And yet, if you bring your own camera to a sporting event and stream it or upload it, you will be successfully sued for copyright infringement (among other things).
        
        Has that happened?
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      - Mike Masnick (profile), 18 May 2015 @ 4:55pm
        
        Re: Re: Re: Re:
        Exactly. So if I, as a member of the audience, film it on my own, with my own cameras, there is no use of a copyrighted broadcast. Certainly there might be some issue if I can hear the announcer on my recording, but if I delete the sound, there shouldn't be any copyright interest. And yet, if you bring your own camera to a sporting event and stream it or upload it, you will be successfully sued for copyright infringement (among other things). For no reason that anyone has ever discovered.
        
        I don't think that's true. Can you cite a case?
        
        The owner of the stadium has the right to ban you and or to not let you back in, but I don't see how they could possibly sue you for copyright infringement.
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      - Dan (profile), 18 May 2015 @ 5:17pm
        
        Re: Re: Re: Re:
        And yet, if you bring your own camera to a sporting event and stream it or upload it, you will be successfully sued for copyright infringement (among other things).
        
        I third the request for a citation--after all, if you're saying "you will be successfully sued", you must have at least one example of a case where it's happened, right?
        
        And if there is such a case, there's a ruling laying out the reasoning, so it's hardly "[f]or no reason that anyone has ever discovered." The only one I can think of that would make any sense would be if something in the terms of the ticket assigned copyright in any recordings you made to the (venue/league/team(s)/etc.). Even that would be pretty questionable, but there's at least a logic to it.
        
        Of course, a recording of the game could easily include other material that is copyrighted, like advertising around the stadium. It's hard to think of an advertiser who'd complain about further distribution of their ads, but that might give a hook to hang a copyright infringement argument on.
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Anonymous Coward, 18 May 2015 @ 4:37pm

"...Appeals Court Gets It Right The Second Time..."
Even a blind dog...
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Jim Haugen (profile), 18 May 2015 @ 6:00pm

Copyright Ownership
It seems like this case should have centered on copyright ownership. I think there is copyright in the recorded performance that would normally go on to the owner or producer of a movie as a work for hire. But in this case, from my understanding, the actor was fraudulently induced to sign the contract, which would potentially cause a problem with the work for hire ownership.
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- nasch (profile), 18 May 2015 @ 7:32pm
  
  Re: Copyright Ownership
  But in this case, from my understanding, the actor was fraudulently induced to sign the contract, which would potentially cause a problem with the work for hire ownership.
  
  I don't think the case hinges on this being a work for hire. It's not the cameraman claiming copyright because he's the one who fixed the work. The actor just doesn't have a copyright claim in the film, whether there was a contract or not. My understanding, anyway.
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- James Burkhardt (profile), 18 May 2015 @ 8:24pm
  
  Re: Copyright Ownership
  As a collective work it is automatically a work for hire. Its not the contract that defines that.
  
  Additionally, even if it wasn't, she is not the person who 'fixed' the work, nor was that person working for her, so she doesn't own the copyright in the first place.
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  - Anonymous Coward, 19 May 2015 @ 12:51am
    
    Re: Re: Copyright Ownership
    As a collective work it is automatically a work for hire. Its not the contract that defines that.
    
    This is false. A collective work is for example an anthology. If I ask you to write a piece for me to publish in an upcoming anthology and you do, then most certainly, absent a contract for hire, I do not get your work as work-for-hire, do not get ownership over it, anything. I might have an implied license to publish it in the anthology I told you about.
    
    You might be thinking at a joint work, which is what movies are considered to be (absent contracts).
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techflaws (profile), 18 May 2015 @ 10:35pm

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.

As opposed to the ridiculous situation we have today with all the copyrights for music (singer, writer, sound recordings)...
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Anonymous Coward, 19 May 2015 @ 1:16am

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:

I don't see the damn good job responding to the point, since the quoted paragraph doesn't respond to the point. It only qualifies it as "moral outrage and colorful language", it doesn't reason why it'd be incorrect.

Mind you, I don't think any of them, majority and dissent, are entirely correct. Just that I was expecting a substantive response to a point, and see only throwing words to qualify, not reasoned arguments.
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