Artists Beware: Performers Can Claim Copyright to Their Own Contributions

If you work in film, video and/or are a journalist, you’d better pay attention.

Wanting to compete with the 2nd Circuit’s boneheaded Cariou v. Prince ruling, the 9th Circuit’s Judge Kozinski gives ample competition to Judge Parker’s abominable Cariou opinion.

Quick background: an actress, Cindy Garcia, was duped into appearing in the film “The Innocence of Muslims,” the inflammatory anti-Islamic film that earned everyone associated with it, including Garcia, death threats from angry Muslims. Garcia rightly wanted out. Judge Kozinski gave her that out, ruling that the film producer violated Garcia’s copyright to her performance in the film.

As The Washington Post’s Timothy Lee rightly points out, it is easy to see why Judge Kozinski wanted to rule in favor of the performer. It’s how he got to that conclusion that leaves one wondering what the hell is going on over on the West Coast.

Here’s the thing. It’s not just that Kozinski’s copyright ruling gave Garcia the opt-out. That in-and-of-itself is a boneheaded opinion. It’s more that Kozinski’s ruling will have profound negative effects on almost all creative industries.

Usually, when an artist films or videotapes a performer there isn’t a big deal made about who owns the copyright to that performers performance. That’s because under US Copyright law it’s the person who is fixing the idea into a tangible medium of expression. In our case, celluloid or a digital file. There may be a right of privacy or right of publicity issue if the artist captures an individual in the film or video, but that is certainly not a copyright issue. And even if the artist didn’t obtain a model release from the subject, one could argue that the subject gave an implied license to her/his persona, character, name, voice, etc. But again, that doesn’t fall under copyright law. The disturbing part of this opinion is that after Kozinski’s ruling, all that I just detailed went out the window.

If you’re wondering about the work-for-hire doctrine, Kozinski pretty much writes his own book on how that doctrine applies to filmmakers. This is a good laugh.

There’s nothing in the record to suggest that Youssef [the filmmaker] was in the “regular business” of making films…. He’d held many jobs, but there’s no indication he ever worked in the film industry. And there’s no evidence he had any union contracts, relationships with prop houses or other film suppliers, leases of studio space or distribution agreements. The dissent would hold that Youssef was in the “regular business” of filmmaking simply because he made “Innocence of Muslims.” But if shooting a single amateur film amounts to the regular business of filmmaking, every schmuck with a videocamera becomes a movie mogul.

Yes, that’s right! Every schmuck with an i-Phone is a movie mogul and artist. Don’t like it? Change the Copyright Act. As Techdirt’s Mike Masnick also rightly points out,

There is nothing in copyright law that says you have to be a “movie mogul” to qualify, and it’s troubling both that Kozinski implies that only “movie moguls” get to make use of the works made for hire doctrine and that small independent first-time filmmakers not entrenched in Hollywood somehow have fewer rights.

There’s so much wrong with this ruling and I just don’t have time to elaborate on the other factors, but Masnick and Lee do a good job. For now, if you’re an artist using film or video, you’d be wise to obtain a smartly written and signed release from your actors and performers, and even though it would be wrong, have them assign any and all intellectual property rights to their performance to the filmmaker/artist.

I’ll leave you with this interesting wrinkle courtesy of Kozinski’s ruling, as articulated by Lee,

Hollywood will hate it because it will complicate the process of producing and distributing films. Technology companies will hate it because it could lead to more takedown requests and frivolous litigation.

Strange bedfellows, indeed. Techdirt has the opinion in full, here (bottom of page).

Tags: 9th Circuit, art, Cindy Garcia, copyrightability, film, hollywood, implied license, Kozinski, law, performance, The Innocence of Muslims, work for hire