The Metaphysics of Music Copyright Infringement Litigation

MusicI was interviewed and quoted in a recent BuzzFeed article on copyright litigation related to musical compositions.  The article discusses the basics of infringement claims and defenses, as well as examples both new and old of high-profile cases.  Overall, an excellent layperson’s introduction to the issues involved when one songwriter believes he or she was ripped off by another.

photo by: Douglas Heriot

Ninth Circuit Rules Acting Performance Independently Copyrightable and Not Part of Joint Work

Copyright SymbolIn what appears to be an appellate case of first impression, the Ninth Circuit has issued a remarkable decision in which the majority holds that an individual actor’s performance of a minor role in a motion picture is independently copyrightable, is not part of a work of joint authorship as embodied in the motion picture, and therefore the performance or distribution of the motion picture without the actor’s permission infringes the actor’s copyright, in the absence of a license.

This case involved the now-infamous Innocence of Muslims film, which offended a large segment of the Islamic community and led to riots and protests overseas.  According to the facts as set forth in the decision, the Plaintiff, Cindy Lee Garcia, was hired by an amateur film-maker to play a minor role in what he described as an action film titled Desert Warrior.  She was only given the four pages of the script in which her character appeared, and worked three and a half days on the set.  That footage was eventually used in an anti-Islamic film titled Innocence of Muslims, in which at least some of Ms. Garcia’s lines were dubbed over so that she appeared to ask whether Mohammed was a child molester.  When the film was aired on Egyptian television and uploaded onto YouTube, protests ensued and fatwas were issued, including one calling for the death of Ms. Garcia.

You might well ask what this all has to do with copyright law.  The answer lies in the DMCA. [Read more…]

Second Circuit Vacates Google Books Class Certification

Judge using his gavelThe Second Circuit has vacated the district court’s class certification ruling in the Google Books case (Authors Guild v. Google), holding that Judge Chin must rule on Google’s fair use defense before considering class certification.  The panel, comprising Judges Leval, Cabranes and Parker, noted that Google’s objections to class certification “may carry some force,” but ruled that the fair use defense should be resolved first, and that such resolution “will necessarily inform and perhaps moot [the Second Circuit’s] analysis of many class certification issues.” [Read more…]

Heisman Hostilities: The Tension Between Copyright and Right of Publicity in Celebrity Photographs

Desmond HowardSometimes, when you mess with the bull you get the horns.  Such seems to be the case in a copyright infringement action recently filed by photographer Brian Masck.  The case involves the photo displayed to the left, depicting football legend Desmond Howard.  Mr. Masck took the photograph at a game in 1991, the year that Mr. Howard would go on to win the Heisman Trophy.  The photograph depicts Mr. Howard striking a pose similar to the figure on the Heisman Trophy after making a big play in the game that day.

Over twenty years later, Mr. Masck has filed a lawsuit against several different defendants, claiming that they have infringed his copyright in the photograph by using it without his permission.  Fair enough, and obviously liability would depend upon the specific facts relating to each defendant’s use.   This case gets interesting, however, because Mr. Masck chose to include Mr. Howard, the subject of the photograph, as a defendant. [Read more…]

Viacom v. YouTube: District Court Again Dismisses All Copyright Claims Against YouTube

Judge using his gavelOn remand from the Second Circuit, which had partially reversed the district court’s summary judgment dismissing Viacom’s copyright infringement claims against YouTube, the district court has again dismissed all claims on DMCA safe harbor grounds.

After Judge Stanton first dismissed Viacom’s case, holding on summary judgment that YouTube was shielded by the DMCA safe harbor, the Second Circuit reversed and remanded for further briefing due to questions regarding, inter alia, whether the record evidence established (1) YouTube’s actual or “red flag” knowledge of specific infringing activity, (2) willful blindness to such activity, and (3) whether YouTube had the right and ability to control the infringing activity.

On remand, and after further briefing, Judge Stanton again granted summary judgment on all counts to YouTube. [Read more…]