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“Hard cases make bad law,” says an old legal adage, and that applies to the Innocence of Muslims case, according to several experts The Hollywood Reporter spoke to in the wake of Wednesday’s ruling in Garcia v. Google. Others, however, agreed with the ruling. But the facts of the case are so unusual – allegedly, an egregious fraud and a lack of written agreement – that most of the same experts say the practical implications of the case are limited.
And yet, three of the experts we spoke to warned that the case would lead to more lawsuits. That’s the same position taken by Google, which argues that the decision portends “uncertainty and chaos for the entertainment industry, documentary filmmakers, amateur content creators, and for online hosting services like YouTube,” as the company put it in a filing that sought review of the 2-1 decision by the 9th Circuit.
The crux of the case is whether an actor’s performance is protected by a copyright independent of the copyright in the script and the movie itself. That sounded like an “angels dancing on the head of a pin” distinction to some of the experts we spoke to.
“It is a terrible ruling,” said UCLA School of Law professor Neil Netanel. “The better view, as well expressed by the dissent, is that actors’ performances are not independent copyrightable works.”
However, others were supportive of the decision, notably including David Nimmer, co-author (with his late father) of an eleven-volume treatise on copyright that’s been cited several thousand times by courts. Nimmer – who also teaches at UCLA and is of counsel at Irell & Manella – told THR that he agrees with the decision, although he added that the facts of the case were “as squirrely as you could imagine.”
“Whether an actor’s performance contributes copyrightable expression (is) a serious matter of first impression,” said Nimmer. “This is a square ruling that it does.” But, he acknowledged, “the dissent raises cogent questions.”
Said Loyola Law School’s Jay Dougherty, “limited to this unusual fact pattern, the copyright ownership ruling seems correct.” Dougherty is the author of a comprehensive law review article, Not a Spike Lee Joint? Issues in the Authorship of Motion Pictures under U.S. Copyright Law, cited in both the majority and dissent on Wednesday.
“This is clearly an ends-driven opinion,” countered Davis Wright’s Alonzo Wickers, who represents content creators and distributors. “The plaintiff is very sympathetic.” (Cindy Lee Garcia received numerous death threats as a result of the film.)
University of Maryland law professor James Grimmelmann was blunt. “It’s amateur hour at the Ninth Circuit,” he said. “The opinion features the kind of reasoning I’d expect from a bright but careless student, someone who knows the basic concepts of copyright but not how they fit together.”
(In this case, the “careless student” who wrote the majority opinion is none other than Alex Kozinski, chief judge of the 9th Circuit, a former Supreme Court law clerk who was appointed to the appellate bench a mere ten years out of law school.)
James Janowitz, chair of the entertainment group at New York’s Pryor Cashman, said “sometimes people will twist themselves into a pretzel” to reach a desired decision. Janowitz represents production companies and networks.
Representatives of talent, not surprisingly, supported the decision.
“SAG-AFTRA is gratified that the Court recognized that an audiovisual producer cannot rely on copyright law as a shield against those whose performances are used without their consent,” said Duncan Crabtree-Ireland, the union’s chief operating officer and general counsel. “This case underscores the need for all parties on a film project to have adequate contractual protections, such as those set forth in the SAG-AFTRA agreements.”
“I was pleased to read Judge Kozinski’s opinion, and feel that it is the correct view of the law,” said Charles Harder, whose firm Harder Mirell & Abrams represents numerous celebrities. “What the producer did . . . is a species of fraud, and, according to the opinion, severe enough to even void a written acting contract between the actor and the production company, had the actor signed one.”
One thing most of the experts agreed on was that the sky was not going to fall – at least, not on Hollywood. Is the decision likely to lead to more litigation? Netanel, Nimmer, Dougherty, Janowitz and Harder all said no.
“There’s no need to get too worried about this decision,” said Janowitz.
But don’t try telling that to Grimmelmann. He’s quite concerned.
“Now anyone whose expression appears in a film and who doesn’t have a signed work-for-hire agreement has a sufficiently plausible copyright claim to wave around the threat of an injunction to shut down distribution,” he said. “Even if only one in twenty of them succeeds, that’s enough of a threat to coerce settlements from studios who have committed to a release and can’t afford to miss their launch window. And that one case in twenty will wreak havoc.”
He adds, “It’s not just actors. It’s set dressers, Foley artists, camera operators, even the guy playing the bassoon on the soundtrack.”
Wickers too thought there would be an increase in litigation, telling THR, “I think it would likely increase litigation. I think that Judge Kozinski was trying to craft something very, very narrow that would not have broad application, but I doubt he succeeded.”
Another entertainment litigator, who declined to be quoted, also said that more litigation might result.
Several observers thought there might be an increase in takedown requests, which is one of Google’s concerns – presumably its main concern.
What can transactional lawyers do to reduce the litigation risk? For studio lawyers, who have the luxury of crafting 30-page agreements, Janowitz suggests a possible tweak to the already protective language: add a sentence in which the actor waives any copyright interest that may exist in his or her performance (but be careful not to imply in the new language that such an interest does, in fact, exist).
But for smaller productions – independent films, reality shows, web productions and the like – the problem is more difficult. Because of their smaller budgets, those projects typically use shorter agreements and are less likely to be rigorously lawyered, as Grimmelmann points out:
“(This decision) elevates the consequences of screwing up even one piece of paperwork from ‘mild hassle’ to ‘potentially catastrophic.’ Smaller, low-budget, independent, and student productions – ones that don’t have experienced lawyers crossing every t and dotting every i – are most at risk.”
Nor is it clear that paperwork can be 100 percent effective.
Suppose, for instance, that Garcia had signed an acting agreement or a release, but had still been deceived about the nature of the film, as she alleges. Would she have still prevailed? It becomes a harder case, but the issue doesn’t necessarily disappear. After all, even a written agreement is subject to attack for fraud. “This case gives a little ammunition” for such an argument, Nimmer acknowledged.
And what if the fraud weren’t as shocking as alleged here, where Garcia’s performance was allegedly turned into an anti-Mohammed slur? Here too, one has to wonder. The majority opinion says, “Garcia was duped into providing an artistic performance that was used in a way she never could have foreseen.” Is that phrasing broad enough to encompass the frat boys and others who were duped into appearing in Sacha Baron Cohen’s film Borat under false pretenses?
Those are questions with no easy answers – unless, that is, a larger panel of the 9th Circuit takes the case and decides to reverse. Google has filed its appeal for what is called en banc review. Those appeals are rarely granted, but this case, with a flurry of amicus briefs likely, may be an exception.
Email: jhandel99 at gmail dot com
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