For those who thought that the US Court of Appeals for the Ninth Circuit had embraced a new theory of
copyright in Garcia v Google in February 2014 (here), such expectations were disappointed last month when the Court reversed its decision, denying
Garcia's copyright interest in her acting performance within the highly controversial video Innocence of Muslims.
Garcia tried to get the video removed from YouTube by sending a take-down request to Google alleging violation of her state law rights to privacy and to control her likeness. She also sent Google five take-down notices under Article 17 USC, the Digital Millennium Copyright Act, all in vain. Garcia then sued Google and Youssef before a Los Angeles State Court on the basis of a selection of torts that included invasion of privacy and violation of her right to publicity. After dropping that action, she sought a temporary restraining order and an order for a preliminary injunction against the same co-defendants before the District Court of the Central District of California on the basis of copyright infringement, which is where the copyright story begins. The court held that Google was not prohibited from hosting Innocence of Muslims, either because Garcia's copyright interest in the video was not established or because she was taken to have granted an implied licence of her contribution in the video to Youssef.
All in all, Garcia did not prove that the injunction would have prevented any harm, since she did not act promptly by commencing legal proceedings as soon as the video was online and did not establish that she had a copyright interest that was enforceable in the proceedings on the merits. On appeal the Federal Court granted Garcia an injunction, ordering Google to remove all copies of the video. The Court subsequently amended this injunction, instead allowing only versions of the video which did not include Garcia's performance to be distributed on YouTube.
On 18 May last, the Court of Appeals for the Ninth Circuit reheard the case and took a different view. The importance of this final decision in Garcia v Google can be explained in relation to three main points:
* definition of what is copyright-protectable in audiovisual works, refusing to accept that the existence of an autonomous copyright interest in a single acting performance constituted authorship of the whole work;* the exercise of seeking to balance copyright with freedom to speech and * the consequences of copyright claims on the monitoring of uploaded materials by internet service providers (ISPs).
Equally, Hollywood relies on contract law to limit actors' copyright claims, and actors are deemed to have given implied licences to film-makers in the absence of a contract. The Court took the view that Garcia's performance was a work-made-for-hire and that she thus granted an implied licence to Youssef.
The Court emphasised that, from the perspective of third party content distributors, it would not be easy to access any implied licences, meaning that no previous knowledge of possible copyright infringement can be required of them, nor any obligation to monitor the content uploaded. Finally, the fact that Garcia did not fix her performance on a tangible medium of expression ran counter to recognising her as having made any authorial contribution to Innocence of Muslims.
Although the Court might have stopped there, it went on to rule on the irreparable harm requirement. The Court did not disregard the seriousness of the death threats to Garcia but, even conceding that she suffered emotional distress because of the danger to her life, such harm was not connected with her copyright claims. Copyright serves to reward an author's creativity and to boost new creation, not to protect privacy.
Judge Kozinski, dissenting, held that Garcia's acting performance was fully copyright-protected and that she acquired copyright at the moment when Youssef fixed her performance in Desert Warrior. Of the majority decision, he considered that it sacrificed copyright interests for the sake of simplification of film-making productions and service providers' activities.
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