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…]

ASCAP Court Rules for Pandora: Music Publishers Cannot Partially Withdraw Songs From ASCAP Catalog for Only Certain Users

Judge using his gavel In a major vic­tory for Pan­dora (and all other dig­i­tal music ser­vices), the ASCAP Rate Court has ruled this evening that ASCAP’s recent changes to its gov­ern­ing rules, which pur­ported to allow music pub­lisher mem­bers to selec­tively with­draw their cat­a­logs from the ASCAP reper­tory for cer­tain dig­i­tal music ser­vices while keep­ing the songs in the reper­tory for other licensees (such as broad­cast­ers, bars and restau­rants), vio­lated the ASCAP con­sent decree and there­fore any pur­ported with­drawals were ineffective.

This whole mess started a cou­ple of years ago.  After a series of losses in the ASCAP and BMI Rate Courts (in cases where ASCAP and BMI sought out­ra­geously high roy­alty rates and were rebuffed by the Courts), var­i­ous ASCAP mem­bers wanted to find a way out from the scrutiny pro­vided by the Rate Courts.  [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…]

Supreme Court Refuses to Hear Appeal on Constitutionality of Copyright Royalty Judges

Angry JudgeYester­day, the United States Supreme Court denied cer­tio­rari (i.e., refused to hear an appeal) on the D.C. Circuit’s deci­sion hold­ing that appoint­ment of the orig­i­nal Copy­right Roy­alty Judges vio­lated the Appoint­ments Clause of the Con­sti­tu­tion, but then judi­cially re-writing the statute to “cure” the prob­lem by mak­ing the Judges sus­cep­ti­ble to ter­mi­na­tion at will by the Librar­ian of Con­gress.  That deci­sion also led the D.C. Cir­cuit to remand the Web­cast­ing III rate deter­mi­na­tion back to the Copy­right Roy­alty Judges, because uncon­sti­tu­tional appoint­ment of the orig­i­nal Judges was void ab ini­tio.  Now that cert has been denied, that remand can proceed.

Notably, all three of the orig­i­nal Judges who issued the Web­cast­ing III deter­mi­na­tion are now retired.  The entire panel has turned over in the past year or so.  Only time will tell how the new Copy­right Roy­alty Judges will  deal with the remand.

Fakler quoted in Andrew Sullivan’s The Dish

This is fun.  One of my quotes on the ways in which record com­pa­nies abuse record­ing artists was picked up and high­lighted in Andrew Sullivan’s The Dish.

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