More on the “Innocence of Muslims”

March 3

Eugene has already covered the basic details of this case , so I won’t repeat them here.  [The court's opinion can be found here]  There are a couple of additional interesting angles on the court’s decision, however, that are worth noting.

To begin with, I think (as does Eugene) that the court got it right:  Cindy Garcia’s performance in the film is a separately copyrightable “work of authorship,” she is the owner of the copyright in it, she did not give the filmmaker a license to use her copyright-protected work in his film, so Google needs to respond to her “takedown notice” and remove the film from YouTube (at least until her portion of the film is excised from it).

The first part of that in particular has Hollywood in a bit of a tizzy, I’m told.  Does every actor, in every motion picture, really have his/her own copyright in his/her contribution to the film?  Answer: Yes.  I think that’s actually settled, conventional copyright law, because that’s the (rather absurd, but there you have it) way that copyright works these days – any and all creative expression showing even the slightest degree of originality and creativity is protected by its own copyright, and in virtually all cases, an actor’s interpretive performance of the script is sufficiently original and creative (over and above the script itself) to surmount rather easily that threshold.  Copyright protection is absurdly broad – I’ve made this point a million times on this blog – and it’s absurdly broad in large measure because Hollywood has lobbied hard to make it so.  So to hear them crying now about how difficult this will make their lives leaves me unmoved.

Though absurdly-broad copyright law does indeed make their lives more difficult.  Damn near everybody who works in a creative capacity on a motion picture – every actor, writer, camera person, cinematographer, special effects artist, – has a separately copyrightable work of authorship incorporated in the film, and anyone distributing that film, or showing it in a theater, or putting it up on YouTube needs to have the permission to do so from every one of them.

Now of course, in the ordinary case, that permission can be easily implied from the surrounding circumstances – the cameraman working on Twelve Years a Slave surely understood, and was impliedly authorizing even if there was no written agreement to this effect, that his/her contribution was going to be included in the film, that the film would be distributed and reproduced and shown on television, and in movie theaters, etc. etc. [Garcia, of course, was very much not the ordinary case in this regard, and given the facts of the case, the court was surely correct in holding that she granted no implied license to the filmmakers to use her copyrighted work in theirs]

Implied licenses, though, are notoriously ambiguous and can lead to all sorts of interpretive problems down the road (in 2024, when they come up with a means of transmitting motion pictures directly to your retina, there will be arguments about whether transmitting Twelve Years a Slave using such a system is, or is not, within the scope of the implied license granted back in 2013 . . .), the careful lawyer working on a film project can follow one simple rule:  get some sort of copyright release or license (or, better yet, a transfer of the copyright) from every single person working on the film in pretty much any capacity.  Nobody gets on the set without having signed one.

That’s a pain in the neck, but it is not a completely unmanageable pain in the neck (and I assume that most studios have been implementing that rule for a long time).  So that’s not the part of Garcia that would keep me up at night if I worked for a Hollywood studio.  The part of Garcia that would keep me up at night if I worked for a Hollywood studio is buried in section 203 of the Copyright Act:  any “transfer or license of copyright or of any right under a copyright executed by the author on or after January 1, 1978 . . . is subject to termination” 35 years after it was executed, under the conditions set forth in that provision.  By making it clear just how many people have granted “licenses” that allow studios to distribute motion pictures, the decision makes clear just how many people can terminate those licenses.  That is not, I suspect, an edifying prospect for the studios and their lawyers.

David Post taught intellectual property and Internet law at Georgetown Law Center and Temple University Law School until his recent retirement. He is the author of "In Search of Jeffersons Moose: Notes on the State of Cyberspace" (Oxford, 2009), a Fellow at the Center for Democracy and Technology, and an Adjunct Scholar at the Cato Institute.
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Will Baude · March 3