April 15, 2014 11:25am PT by Eriq Gardner
Netflix Asks Appellate Court to Reconsider 'Innocence of Muslims' Ruling
On Monday, Netflix became the latest to lodge its freakout at the prospect of an actor enjoining the distribution of a movie.
Papers filed on Monday at the 9th Circuit Court of Appeals by the streaming company comes in reaction to a shocking ruling last February that determined that Innocence of Muslims actress Cindy Lee Garcia could assert a copyright interest in her performance in the film, and that Google had to remove the controversial anti-Islamic film from YouTube. Since then, a parade of amici have lined up to get the federal appellate circuit to change its mind by urging a rehearing en banc.
Netflix has taken Google's winks of the potential of "Hollywood chaos" and is expressing its own fear of what might come should 9th Circuit Chief Judge Alex Kozinski's opinion stand.
"Can a bit-part actor in Gone With the Wind now seek an injunction … because he does not approve of the use of his performance in a piece of 'Yankee propaganda'?" Netflix asks in its amicus brief. "What about his heirs? And even if he signed some agreement in 1939 defining the scope of the license, what are the chances that the studio (to say nothing of Netflix) can lay its hands on it?"
Some in Hollywood think that Garcia v. Google is no big deal — that unlike Garcia's situation, standard acting agreements and signed releases will prevent creative contributors like movie extras from asserting copyright claims. Then, there are the worrywarts who argue that it doesn't matter whether or not the claims are valid. If there's even a hint of legitimacy, service providers will err on the side of caution by removing works in the face of a takedown demand in the interest of gaining safe harbor from copyright liability.
Count Netflix in this camp. According to its brief, "By creating a new species of copyright, and empowering essentially any performer in a motion picture or television program to both sue downstream distributors and enjoin any use of her performance of which she does not approve, the panel majority risks wreaking havoc with established copyright and business rules on which all third party distributors, including Netflix, depend."
"Like all other licensees of film and television shows not of its own creation," the company adds, "Netflix has no ability to determine whether licensing niceties have been observed for each of the tens of thousands of works it distributes, and no easy way to assess or defend against a claim they have not."
Netflix joins others who are demanding that the 9th Circuit reconsider. News organizations like The Washington Post and National Public Radio argue that the decision could give subjects of news coverage "veto power" over unflattering reports. " If an actress reading a script authored by someone else is 'sufficiently creative to be protectable,' public officials could argue that they 'own' the copyright to their prepared remarks, or their extemporaneous responses to a videotaped interview."
Documentary filmmakers like Morgan Spurlock and Fredrik Gertten warn about a "new ambiguity" that will plague their craft. "Filmmakers using interviews in a documentary must be sure those on screen, even if their embodiment of recollections are creative, do not have a copyright interest that could halt release of the project – or even threaten to do so. One need only consider reality TV of the unscripted variety. Before releasing 14 episodes to be aired, the producer must now agonize about whether the contribution of anyone appearing on the show supports legal threats, even an injunction."
Among the other amici who want a rehearing: Facebook, eBay, Gawker, Twitter, Yahoo, IAC/InterActiveCorp, Tumblr, Kickstarter, several public interest groups as well as various IP and Internet law professors.
So far, we haven't seen SAG-AFTRA weigh in — and if the actors' guild gets its amicus brief in by today's deadline, we'll update. For now, the only opinion we've see where someone says a review is uneccesary comes from entertainment lawyer Charles Harder, who has represented (although not here) Sandra Bullock, George Clooney, Bradley Cooper, Clint Eastwood and Reese Witherspoon.
"I would encourage the Court to see past what I can only imagine are legions of the finest legal practitioners and scholars representing Google — one of the world's wealthiest companies, with limitless financial resources that surpass most industrialized countries," writes Harder. "As Judge Kozinski correctly found, justice is and should be on the side of Ms. Garcia who thought she was being cast in a B-movie adventure film, only to have her life turned upside-down by an unscrupulous film producer and one of the world's wealthiest corporations that, on principal, refuses to remove a video that was created based on a fraud, and has subjected her to perpetual death threats and hate speech."