Copyright is straightforward when it involves only a single author: anyone who creates any work which is more original than a phone book and fixed in some tangible medium automatically receives copyright ownership (under the Berne Convention Implementation Act) and can exercise any power granted under 17 U.S.C. Section 106. The recent 9th Circuit ruling of Garcia v. Google, however, demonstrates that when multiple, conflicting parties are involved, application of copyright law quickly becomes muddled and ambiguous.
Cindy Garcia was paid approximately $500 for three and half days of filming of a minor role in writer and producer, Mark Basseley Youssef’s film Desert Warrior. This footage, however, was not used for the film described to Garcia at the time, which she thought was going to be an adventure themed film. Rather, Youssef used the footage in a scene for an anti-Islamic film, Innocence of Muslims, hosted on Youtube.com. Following an issuance of a fatwa by an Egyptian cleric and numerous credible death threats, Garcia sought a preliminary injunction against Google from hosting the video on the grounds that the video violated her copyright. The 9th Circuit overturned a District Court ruling denying her the injunction, but only after navigating a complicated web of determining who actually owned the copyright, what licenses were granted, and how hosts such as Youtube should react when such unclarity exists in content they are hosting.
Who owns the copyright?
The Copyright Act of 1976 offers little guidance in determining who owns Copyrights in multi-party productions of works, and this led both the majority and the dissenting opinion of Google v Garcia to scrutinize who actually owned the footage of Garcia. If it were clear that Garcia was Youssef’s employee, or there were an explicit written agreement, Youssef could have claimed that any work done by Garcia constituted work-for-hire and any copyright was his and not Garcia’s. In this case, there was no explicit written document, and the majority and dissent split on whether less than four days of work, and the lack of traditional employment benefits such as health insurance, constituted employment.
The dissenting opinion even denied that Garcia had any copyright interest in the film at all, even though Section 102(a) specifically lists dramatic, motion picture and other audiovisual works as protectable, and the majority asserted that an acting performance, “no matter how crude, humble or obvious,” passes the threshold of original according to Feist v. Rural. The dissent argued that this is a necessary but insufficient grounds to establish copyright interest, because Garcia did not fix her work in a medium and she did not qualify as an author due to her role as an actress and not a producer. If this sort of argument prevails in future rulings, it could place in jeopardy the control artists have over their performances and recordings created from it.
What licenses are implied?
Even if Garcia unambiguously owned the rights to her work, and there was no explicit license granting Youssef to produce derivative works, there is still a question of what rights may be implied by such a transaction. In the film industry, there is precedence that paying an actor to perform creates an implicit license, since otherwise the footage would unusable by the producer. However, the fact that Youssef misled Garcia about the nature of the film’s production led the court to conclude that the any implied license was violated and did not apply.
The situation was further complicated into “an impenetrable thicket of copyright” because if Youssef did not have an implied license to Garcia’s performance and footage, then Youssef could argue that Garcia herself may have committed copyright infringement by performing the script owned by Garcia, and therefore has no copyright interest in the derivative work. In fact, as the court asserts, the screenplays are copyrightable and clearly owned by Youssef in this case, and film footage based off of such copyrighted screenplays are derivative works. Then again, being paid to perform a script may imply a license in the opposite direction from Youssef to Garcia. The court does not settle the matter, since all that is necessary to obtain a preliminary injunction is for the plaintiff to prove their likelihood of success.
Importance and Relevance
This case provides insight on how copyright laws are treated in today’s collaborative economy and how technology companies are addressing copyright laws from their perspective. In particular, because multiple parties in the production of a work were involved and there was a lack formal legal agreements, Garcia v. Google highlighted the difficulty of determining who owns copyright interest in various parts of the work, and what rights were granted in licenses both explicitly and implicitly, before the court can apply Sections 102, 103 and 106. Furthermore, the case raised questions as to how a content host such as Google should treat these sorts of conflicts.
Section 102 is directly applied to this case because it requires identification and determination of the author of the footage. Section 103 is concerned with the derivative works of the footage in which Youssef created a derivative work based on Garcia’s performance for his own purposes of creating the film, Innocence of Muslims. Section 106 ties into this case in terms of dealing with the exclusive rights of Garcia’s claimed copyrighted material, which includes the issue at hand of its distribution to Youtube’s hosting services.
Furthermore, we learn how mediums that host copyrighted material deal with the issue of copyright matters. Rather than file suit against with Youssef, Garcia filed against Google for hosting the content on behalf of Youssef. Even with their policies and systems of determining copyright infringement, Google has not been able to develop a robust model such that it takes into consideration joint works that become one form of content and seek permissions of all players involved with the content that is to be hosted on their Youtube platform.
Because Garcia and Youssef did not have a concrete agreement, everything was carried out based on implications and assumptions. Just as Garcia was led to believe this was going to be for the purpose of an adventure film, there was no clear understanding of where the material was going to be distributed. Based on the preliminary injunction, Garcia has demonstrated the high likelihood that the footage used in the film was her copyrighted material. If anything, though, this case is a warning to all actors and performers that they need to make the terms of their work explicit in writing and not rely on the customs and norms of an industry for protection of their interests.
What problems arise from this law’s interaction with technology and society?
Since there wasn’t an explicit agreement between Youssef and Garcia, applications of Sections 102, 103, and 106 must be closely examined based on their implied agreements and how and where the content was used in separate instances. Using the definitions in these sections, it is necessary to see if the content at question meets the definitions and requirements. If there was an explicit agreement, the terms and conditions would have provided confirmed detail of whether or not copyright laws should be applied or not.
The problem that arises with application of copyright laws in the domain of technology is how to protect copyrighted material in an effective and efficient manner. For example, Google has catered to the the DMCA and developed a system, Content ID, for its Youtube hosting service to identify what content is copyrighted and what is infringed upon. Nevertheless, the system is passive in that it scans the music and video content to see if it has been copyrighted elsewhere. Although Google has taken the initiative to go above and beyond what the DMCA requires, the scan is not thorough in that it does not take into consideration the actors involved and check for authenticity of the authors. The only authentication of authorship Youtube considers is the user who uploads the content to see if its their original work.
In an earlier case study of Google’s approach to dealing with the DMCA and copyright infringement of content in its search query results, Google demonstrated that it considers content to be copyrighted when users file a notice of copyright infringement. In other words, Google deals with copyright infringement by passively reacting to a claim at face-value, rather than actively investigate that each piece of content being hosted on its services goes through a verification system to prove originality and authenticity of copyrighted material. Google’s passive approach also depends on users and society to participate in deciding what is copyrighted material and what is infringed upon by having users file complaints or requests for take-downs of content that is considered to be copyrighted and not belonging to the individuals who have uploaded the material.
Furthermore, society has a say in what is and what isn’t copyrighted material through this request system. Using the quick scan of Content ID and user feedback, Google has shown that it has taken some prerogative to dealing with copyright issues yet the system is “broken” in that its trusts the requests at face-value rather than undergo further investigation itself. Google trusts and assumes participants have a clear understanding of who owns the copyright to a given video and expertise of the standards and criteria for what is copyrightable, and does not verify validity, or investigate if the claimants have ulterior motives for filing requests. Thus, the application of copyright law has become a collaborative effort between users and distribution channels.
Feist v. Rural, 499 U.S. 340 (1991):
Garcia v. Google, Inc. [pdf]:
Copyright meets “Innocence of Muslims”: Ninth Circuit orders removal of movie from YouTube, on copyright grounds:
Youtube’s Letter to Users Addressing Copyright Issues:
Content ID Case Study: