The boneheaded copyright ruling that will unite Hollywood and Silicon Valley

February 27

(AFP PHOTO/HECTOR MATA)

It's easy to see why Judge Alex Kozinski wanted to side with Cindy Garcia, the actress who was duped into appearing in the film "The Innocence of Muslims." The inflammatory anti-Islamic film earned everyone associated with it, including Garcia, death threats from angry Muslims.

But Kozinski's Wednesday ruling that the film's producer violated Garcia's copyright threatens to have profoundly negative effects on creative industries. By giving anyone who appears in a movie an effective veto over its distribution, Kozinski's ruling risks creating paperwork nightmares for Hollywood studios. And the novel legal theory at the heart of Kozinski's opinion could prove disruptive to other industries as well.

A movie is the joint product of dozens, if not hundreds, of contributors. Actors, directors, composers, cinematographers, screenwriters, camera operators, set lighting designers, the set dressers, artists who paint the scenes, CGI artists, and many others contribute to a movie.

Who owns the finished work? James Grimmelmann, a legal scholar at the University of Maryland, says that traditionally the law has assigned authorship in a movie to the creative force behind a film, usually its director. For example, in a 2000 ruling,  Kozinski's own Ninth Circuit Appeals Court rejected a claim by Jefri Aalmuhammed that his contribution to Spike Lee's film "Malcolm X" made him a joint author of the film. No one disputed that Aalmuhammed had made a significant contribution to the film. But Lee was the creative force behind the film, which means that for legal purpose he was its sole author and the owner of the copyright.

Grimmelmann believes the same logic should have applied to Garcia's lawsuit. She wasn't the creative force behind "The Innocence of Muslims." She didn't write the lines she recited in the film (or the inflammatory statements dubbed over her voice in the Arabic version of the film). While she contributed some creative expression to the project, there was only one copyrightable work, the movie as a whole. And she wasn't the author for copyright purposes.

But Kozinski disagreed, ruling that her performance constituted a separate, copyright-eligible work. Ordinarily, an actress gives a film producer implicit permission to use her performance when she signs up to act in a film, Kozinski ruled. But in this case, the deceptive way she was recruited nullified that consent.

The ruling creates the possibility that disgruntled actors, screenwriters, set designers, or anyone else in the film's credits could go to court to try to stop a film's distribution.

An injunction against distribution is "the big threat against a movie studio," Grimmelmann says. "The leverage comes from the threat to prevent commercial distribution after they've picked a release date and released an advertising campaign. The plaintiff doesn't even have to be likely to win. If it's plausible enough to not get thrown out quickly, they can coerce a settlement."

And Hollywood isn't the only industry that could be affected. For example, every time a journalist interviews a source, the source gives the journalist implicit permission to quote his words. But Kozinski's ruling suggests that if a source doesn't like how his words are used, he can go to court arguing that the interview had been conducted under false pretenses, and that therefore publishing the article was copyright infringement. It's not hard to imagine similar scenarios in the music and software industries.

Grimmelmann points out that copyright debates typically pit content companies favoring stronger copyright against technology companies that favor weaker protections. But this decision is likely to raise the ire of both camps. Hollywood will hate it because it will complicate the process of producing and distributing films. Technology companies will hate it because it could lead to more takedown requests and frivolous litigation.

Google is almost certain to appeal the decision, and it is likely to be supported by a long list of parties that are rarely on the same side in copyright cases. The decision is "an invitation to chaos in industries that thrive on orderly, predictable, clear licensing," Grimmelmann says. It's also a "substantial threat to free expression, which gets the people who are skeptical of copyright lined up against it."

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