Thursday, September 21, 2023

Ninth Circuit to Rehear Erroneous Kozinski Copyright Ruling


Earlier this year we highlighted a Court of Appeals opinion that was so out in right field it might as well have been a hot-dog vendor at Dodger Stadium.

Back in March we reported on this case, Garcia v. Google (here’s the actual opinion) where the Ninth Circuit’s Judge Kozinski basically said that a performer’s performance constituted a separate, copyright-eligible work. In plain English, that an actor performing for a film-maker owns the copyright to her/his performance. Where’s the fixation, you ask? Good question.

The other Ninth Circuit judges surely had the same thought, agreeing to rehear the case, en banc. Basically this is a slap-down to the previous Court, in a sense signaling that the Kozinski’s opinion is out of whack and in need of realignment.

At least the Ninth Circuit Court of Appeals is smart enough to acknowledge the sexiness of and interest in this case,

Due to the level of interest in this case, this site has been created to notify the media and public of procedures and rules for admission to proceedings, as well as access to case information.

En banc oral arguments have been scheduled for December 15, 2014, in Pasadena, California.

The Hollywood Reporter has more here.


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Comments: 6

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  • BGko

    I have a feeling Kozinski knew this would be overturned on appeal, but ruled the way he did anyway in order to reach the end effect he thought was fair to the plaintiff. But still, it seems like there would have been better grounds available to reach the same decision, such as fraud.

  • stephan

    I’m not sure I understand the fixation about “[w]here’s the fixation?” Is the argument that her performance is not a work?; or she’s not the author of her performance?; because an affirmative answer to both those underlying questions would appear to lead to her meeting the statutory requirements.

  • BGko:

    I agree. Unfortunately this “fairness” model takes up valuable court time and tax-payer resources, not to mention exhibiting poor judgment as to what the role of a judge and court of law is.

    Thanks for your thoughts!

  • Stephan:

    We should both clarify. The problem with this situation is that it encompasses problem that dancers and performance artists face: that being that unless their dance/performance is fixed in a tangible medium of expression, there is no copyright protection to their dance/performance. Here, there is fixation but it’s not by the actor; it’s by the film-maker, and where the actor is performing according to the dictates of the film-maker. In other words, but for the fixation by the film-maker, there is no copyright. Usually a dancer/performer will fix their dance/performance on paper, video, and/or film, but both the dance/performance and the fixation are by the dancer/performer (i.e.- author). This is different than photographing a pre-existing and copyrighted 3-D sculpture piece, where that sculpture piece is already fixed.

    Think about how ridiculous the 9th Circuit opinion is. According to Kozinski, if I take a picture of someone walking down the street, that individual now has a right or publicity/privacy right AND now a copyright to walking down the street. That’s quite remarkable, basically establishing that any human movement or act is a copyrightable performance (even though not fixed).

    If we argue that the actor is performing on her own volition and without instructions, we can certainly say that there is an implied license (both as to the alleged copyright in her performance and her right of publicity) to the film-maker. What else did she think was going to happen or be done with the film footage when she was standing in front of the camera?

    I’m curious what your thoughts are on this.

  • BGko

    SMS: I agree with that statement. In law, “Fair” is a four-letter “f word”

  • stephan

    I think the difference between capturing an Performance and someone walking down the street is simply the awareness of the fixation. And since the statute only requires that fixation occur by the authority of the author, I’d argue intent matters. Yes, I acknowledge this raises a new question, but intentionality is well-defined in tort law. So I think the only potentially successful arguments are that the Performance is not a work, which I think raises a whole host of attendant problems, or that she is not the author. The latter is the more interesting question because it requires consideration of how we address artistic works that function as part of a greater whole. (For example, the works in Cariou v. Prince, or present in almost every sound recording.)

    But we have to distinguish between copyright and right of publicity though. I think Kozinski makes a compelling argument why the implied license, which I agree exists, is vitiated by fraud. My problem with the opinion is that it cannot reach a question of fair use—if the performance is used in a manner so alien to the original purpose that any license is voided, then it should easily pass under fair use jurisprudence. So there is no copyright infringement, but Garcia still has actionable state law claims for fraud; right of publicity; etc.

    The problem of the opinion is less the legal reasoning, which I think is more cogent than appears at first glance, but the procedural problems it raises—e.g. fair use being an affirmative defense.

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