Online Blasphemy - YouTube Wins Round Two of Performance Right Kerfuffle

After the decision in Garcia v Google (discussed on this very blog here) last year the question of whether an actor (or actress) has a copyright interest in their respective performance, no matter how short, has been debated hotly. The decision was appealed, and the Court of the Ninth Circuit decided to hear the matter again en banc; a decision that many of us involved in IP have waited for with anticipation. The decision was finally handed down nearly two months ago, and this writer, in shame, only now had time to discuss the case.

For the uninitiated Garcia v Google dealt with a low-budget independent movie called "Desert Warrior", in which Ms. Garcia appeared. Post filming the title and narrative of the movie was drastically changed, finally being called the "Innocence of Muslims"; a movie that arguably was quite blasphemous and offensive towards those of the Islamic faith. Ms. Garcia's appearance was a brief 5 second clip, and her performance was dubbed over in post-production. The movie incited violence and disapproval in the Middle East, with Ms. Garcia also facing several death threats as a result of her appearance in the movie.

The main crux of the case lies in Ms. Garcia's claim in a copyright interest in her performance, allowing for an injunction to be issued against Google for the movie's broadcast on their YouTube platform (and potential other platforms as well). This injunction was issued at first instance.

The Court raised the alarm right from the start, stating that "...Garcia’s theory of copyright law would result in... splintering a movie into many different “works,” even in the absence of an independent fixation", or in other words, every actor or actress in a given movie would have a copyright claim in it. Also, Ms. Garcia's part in the movie would fall under the work-for-hire doctrine, which passes on the copyright interest to the employer, leaving her with no copyright claim in the work. Ms. Garcia did not, as a final barrier to her copyright claim, fix her work in any tangible form; a requisite element under copyright in the United States for an interest in the work to arise. Through the Court's rationale, albeit quite aggressive as such, Ms. Garcia's claim was quickly dissected and dismissed and she was deemed to have no copyright claim in the work.

Free speech online; a precious commodity

Finally, the Court addressed Ms. Garcia's claim under irreparable harm. Her claim does not manifest itself through any tort-based cause of action, but through copyright and her interest in the work as an author. The Court did have sympathy for Ms. Garcia, but her action was rotten at the root, as the Court described: "This relief is not easily achieved under copyright law. Although we do not take lightly threats to life or the emotional turmoil Garcia has endured, her harms are untethered from -and incompatible with - copyright and copyright’s function as the engine of expression". One has to agree with the Court's judgment, as rightfully so copyright protects expression and not human life or its safety. While one has to appreciate that the movie has brought a significant amount of distress to her, and as such those problems should be addressed, but the way to address them is not through copyright. In the end, her claim failed under irreparable harm, as no harm was caused to the work or her claimed interest in the work as an author.

Judge Kozinski, who gave the judgment at first instance, handed down a dissenting judgment, as he saw there indeed was a claim under copyright in Ms. Garcia's small part in the movie. Through his Honor's argument, Ms. Garcia's claim stems from the acting itself, and its fixation on film. Without this, in judge Kozinski's mind "[i]f Garcia’s scene is not a work, then every take of every scene of, say, Lord of the Rings is not a work, and thus not protected by copyright, unless and until the clips become part of the final movie". This writer, in his humble opinion, argues against judge Kozinski here, as the mere recording of an actor or actress does not necessarily create a 'work' unto its own under copyright. Should one follow this logic the movie in question could consist of hundreds, if not thousands of distinguishable works, which would lead to copyright being untenable in the film industry.

Judge Kozinski further argues that Ms. Garcia has an interest as an author, and thus should be protected from irreparable harm. Although, under precedent, an author does not themselves have to affix the work to be considered as such, an actor or actress plays no part in the fixation of a work, but merely act as a part of its fixation for another. This does not create an interest as an author, or a separate author within one work. As she is not an author she cannot face irreparable harm, even if her life is at stake, as his Honor points out at the end of his dissenting judgment.

Overall the case has been a very interesting one, and whether it goes on further remains to be seen; however, this author does not see a need for it to go beyond its current route. Whether Ms. Garcia has a copyright interest in the work is, at least arguably, an equivocal no, and her case, although very serious in nature, would create an overreaching right in copyright beyond its intended purpose.

Source: BBC News

Goodlatte Innovation Act - Patent Trolls Addressed?

Patent trolls (often referred to as Patent Assertion Entities), the creatures that live underneath the bridge of innovation and profit, attempting to benefit from those who wish to use their patents, all the while never actually using the patents they own. Even if their appearance rarely matches those of the fairy tale variety, patent trolls are a big problem in the modern sphere of innovation and creation. Currently patent trolls take up a whopping 62% of all patent infringement claims; having gone up from a still high figure of 29% only two years ago. This can be acknowledged is a problem, and calls have been made to address this issue. Finally the first step has been taken in doing so.

In the United States a Bill was recently introduced called the Goodlatte Innovation Act, which seeks to remedy the changes introduced in the America Invents Act in 2011. According to the Bill's creator, Bob Goodlatte, the Act "...is designed to eliminate the abuses of our patent system, discourage frivolous patent litigation and keep U.S. patent laws up to date. These important actions will help fuel the engine of American innovation and creativity, creating new jobs and growing our economy".

The CEO of Patent Trolls Inc.

The measures the new Act takes is the introduction of the requirement to present information very early on in litigation, essentially justifying the infringement action. The action would then be assessed and should it not be deemed "substantially justified", the alleged infringing party would not have to pay the award sought by the plaintiff. The Act also introduces more stringent disclosure requirements, making the plaintiff submit more detailed information as to the patent being infringed, which specific claim of that patent is infringed, and how it is being infringed by the defendant. This clearly opens up the process and makes it more transparent for both sides, potentially impacting on vague threats over infringement resulting in quick settlements out of fear; exactly what patent trolls are seeking in their mode of operation.

The Act also introduces joinder provisions which link any parties with a "financial interest" in the patent case, clearly targeting shell companies which are used for infringement claims in lieu of the controlling company. This would make the parent companies liable for any fees which would result in frivolous claims, preventing them from side-stepping them while still benefiting from any awards that could be won by the shell company in their claim. In addition it introduces an exception for any infringements that might occur in consumer use or through manufacturers' use of the patent. The court would have the ability to stay those proceedings until the matter between the main companies is settled.

The Innovation Act is clearly something which the patent sphere has been yearning for in the US for the last couple of years, and with the aforementioned figures proving a clear direction in the abuse of patents through infringement claims, those actions need to be curbed. Although the Bill is a bipartisan creation, due to the divide in the current US government the Bill's passing is still in the air; however one could argue its passage is in the interest of both sides and the industry as a whole. Whether the Bill passes or any changes are made will be monitored by this vigilant writer, and I argue this Bill is an incredibly welcome change to the grand scheme of things.

Source: Ars Technica