Will A 'Cast Of Thousands' Become A 'Cast Of Thousands...Of Plaintiffs'? A Preview of Garcia v. Google (Forbes Cross-Post)

Will A ‘Cast Of Thousands’ Become A ‘Cast Of Thousands…Of Plaintiffs’? A Preview of Garcia v. Google (Forbes Cross-Post)

[Note: I wrote the following post on Monday before the oral arguments. I haven’t had a chance to view Monday’s oral arguments, but from the news reports and Twitter feeds, it sounds like Kozinski and McKeown will be squaring off. Let’s hope that works out better than the last Ninth Circuit en banc Internet intermediary case where they disagreed. Judge Kozinski apparently reached deep into his bag of tricks in a desperate attempt to advance his normative agenda; but perhaps his desperation was transparent to his colleagues. I’m still keeping my fingers crossed that the en banc ruling will reach an appropriate outcome.]

One of this century’s hottest social issues is if, and when, people can erase online content about themselves. Europe has recently enacted a powerful erasure right euphemistically called the “right to be forgotten,” which allows people to scrub some unwanted search results for their names. The United States doesn’t have equivalent online erasure rights, but plaintiffs are experimenting with a variety of legal tools to achieve similar outcomes.

A closely watched case, Garcia v. Google, shows how copyright could provide plaintiffs with the erasure rights they seek. The case involves the controversial video ‘Innocence of Muslims,’ an anti-Islam film that sparked angry responses and protests throughout the world. One of the actresses performing in the movie, Cindy Garcia, had an anti-Islamic statement dubbed over her video performance, leading to death threats and a fatwa against her. To get the video taken down, Garcia claimed she owned the copyright in her performance and thus the video infringed that copyright. In a fractured ruling, a 3-judge panel of the Ninth Circuit Court of Appeal ordered YouTube to remove the video and prevent it from showing up in the future. That ruling’s sloppy discussion showed how others depicted in video could similarly claim copyright in their performances to scrub the recordings from the Internet.

Fortunately, the Ninth Circuit vacated that opinion and agreed to rehear the case “en banc.” Later today, the new Ninth Circuit panel will hear oral arguments. Here’s are some of the key issues:

Fixation

Federal copyright law protects expressive works that have been “fixed,” i.e., captured in a tangible media like film or a hard drive. Unfixed expressive works are protected by state copyright law, if at all. Thus, the fixation doctrine channels expressive works between federal and state copyright law. No fixation, no federal copyright law.

It’s dubious that Garcia’s acting performance qualifies as copyrightable. She was hired and paid by the producer, she performed a script provided to her, she was directed by the director, her spoken words were replaced by the words dubbed into the video, and her portion of the video was fleetingly brief (5 seconds). Not surprisingly, the Copyright Office denied her copyright registration.

Nevertheless, let’s assume she can claim copyrightable expression in her performance. How could Garcia show that she “fixed” the performance? The script she performed was fixed, but her acting performance was evanescent–other than the producer’s recording. The federal copyright statute specifies that the fixation must be “by or under the authority of the author.” Garcia didn’t make the film recording herself; the producer did. Can Garcia claim the producer made the recording “under her authority”? No, the producer made the recording under his own authority. (Note: “authority” requires more editorial involvement than simply granting permission to be recorded). So I believe Garcia’s performance can never qualify for federal copyright because Garcia never “fixed” it. For further support, see the 7th Circuit’s ruling in the Banana Lady case, which rejected a performance copyright on fixation grounds when third parties video-recorded the performance.

[Copyright geek note: if Garcia didn’t fix her performance, she might still have a state copyright in her performance. However, a state copyright claim would not help her remove the video from YouTube due to a 2007 Ninth Circuit ruling.]

The district court didn’t address the fixation issue at all because it ruled for YouTube on other grounds. In granting the injunction against YouTube, the majority opinion in the 3-judge appellate panel spotted the fixation issue but ignored it:

Neither party raised the issue of whether the author of a dramatic performance must personally fix his work in a tangible medium. Because the question is not properly before us, we do not decide it. The parties are free to raise it in the district court on remand.

Because fixation serves a crucial gatekeeping function, all other copyright issues in the case are effectively hypothetical: if an actress claims a federal copyright for a performance she didn’t fix (so she doesn’t actually qualify for federal copyright), then what rights does she have under federal copyright law? If the Ninth Circuit doesn’t rule for YouTube on other grounds, it should send the case back to the district court to address the threshold fixation question rather than sketching the contours of a hypothetical copyright law from a parallel universe. Sadly, appellate judges love indulging in hypothetical inquiries, so I expect today’s oral arguments will explore complex and arcane questions that are mooted by the fixation requirement.

Amicus Briefs

The litigants didn’t get a chance to submit new briefs to the en banc panel (they had submitted briefs to the 3-judge panel that produced the now-mooted opinion). However, interested parties (“amici”) were allowed to address the en banc panel, and a total of 13 amicus briefs were filed (see this online library, but it’s missing the News Organizations’ brief). 10 amicus briefs supported YouTube; 2 briefs supported neither party; and one supported Garcia.

My co-blogger Venkat Balasubramani and I filed a brief on behalf of a dozen other Internet Law professors. Our brief discussed 47 U.S.C. 230 (Section 230), the federal statute that says websites generally aren’t liable for third party content–except with respect to intellectual property claims like copyright. We argued that expansive interpretations of copyrightability will allow more online scrubbing than Congress intended per Section 230. We also gave specific examples of other attempts to misuse copyright law to erase negative truthful information online.

A number of YouTube-favorable briefs addressed administrability issues created by a performance copyright. Performance copyrights would create a massive rights thicket, with every person shown in video–from leading stars to extras in big productions to random people walking down public streets in amateur videos–potentially able to assert copyright claims over the video. The copyright law professors explain this in more detail. Independent video producers such as the Volunteer Lawyers for the Arts and International Documentary Association et al voiced concerns about their ability to obtain the necessary consents. And even if video producers handle the consents properly, downstream third parties like YouTube or Netflix won’t know that and won’t be in a good position to research or resolve any complaints. Netflix and CCIA explain more.

Not surprisingly, the Screen Actors’ Guild (SAG-AFTRA) submitted a brief supporting a performance copyright. Curiously silent were the MPAA members and broadcast TV studios, all of whom have quietly stood on the sidelines as this issue of vital importance to their industry is being defined by their arch-enemy Google.

Conclusion

This case has the potential to reshape large chunks of copyright law and create a powerful online erasure tool, so the stakes are high. My hope is that the en banc panel denies Garcia’s injunction. However, if the en banc panel goes down the rabbit hole to explore parallel-universe copyright law, this case could continue to produce weird results.