Despite this overwrought article, this was (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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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.
Techdirt has not posted any stories submitted by jgperez.
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