It took a year, two U.S. District Court judges, eleven judges on the U.S. Court of Appeals for the Ninth Circuit, two judges from the U.S. Court of Appeals for the Second Circuit, and officials from the U.S. Copyright office. But, finally, a long-standing copyright standard in film making has been restored, and, at least for now, the legal view, again, is that individuals who are involved in the making of a finished movie may not assert that they have a separate, stand-alone infringement claim.
This stance, of course, not only got a powerful recent en banc ruling in the appellate courts that oversee Los Angeles, the movie-making capital of the world, it also was affirmed by the appeals judges who oversee the nation’s other entertainment hub: New York.
So for now, Google and its mighty YouTube subsidiary needn’t yank a video that caused a global firestorm and the makers of the movie Heads Up will be headed for further court proceedings. How did both go round to get back to what many in the industry have seen as an important copyright standard?
In Los Angeles, a controversial film, a hotly disputed appellate ruling, an en banc reversal
As this blog has recorded (here and here), actress Cindy Lee Garcia found herself on a hot world stage when a minor production she played a tiny part in blew up over the perception in parts of the Islamic world that the Innocence of Muslims was blasphemous. Fatal riots ensued, and Garcia sought to copyright her performance, a step that become crucial as she sought a court-ordered take-down to Google-YouTube of a video related to the controversial film, in which the actress asserted she had been duped into performing.
The Copyright Office denied her registration, Garcia lost in a federal court, and then she appealed to the Ninth Circuit, which, in a 2-1 ruling led by Judge Alex Kozinski, found she might prevail in her case and granted the take-down injunction. That became a hotly disputed decision, as critics said the court had ignored congressional intent and legal precedent on copyrights for participants in films as well as work for hire standards.
Google and the movie industry aren’t lacking for legal firepower and soon the Ninth Circuit decided to reconsider its holding in what became, perhaps, a surprising trio of recent Entertainment Law cases where all the judges on this appellate bench would weigh in (the Ninth also took up en banc cases involving artists’ rights and a rock band with a name potentially offensive to Asian Americans).
In a legal rebuke to Kozinski, perhaps, the full appellate bench overturned the earlier ruling, finding that Congress never had in mind when it created copyright for movies that every contributor to a finished film, which is a lot of people, could make separate, stand-alone protection and infringement claims.
Policy reasons alone would not allow it and there could be multiple, even hundreds of claims to a finished film, creating a “logistical and financial nightmare,” the en banc court said. The judges, with Kozinski dissenting, said Congress had sought to encourage artists and film makers because society as a whole benefits from their work. But this beneficial outcome would be defeated if film makers knew their hard, completed work could be stalled or undone by anyone in a production claiming copyright, from a make-up artist to a grip to an illustrator on a poster ad.
Across the country, in Manhattan, appellate consensus
A similar case came across the Second Circuit, where two judges had less challenge in denying the notion that individual contributors to a finished film may assert copyright. This case started when Robert Krakovski and his company Casa Duse hired Alex Merkin to direct and edit the film Heads Up. Merkin never signed a work-for-hire contract, and when disputes arose between the two over ownership of the film, Merkin successfully block festivals from showing the film.
When the parties ended up in a federal district court, Krakovski and his company prevailed; Merkin appealed. The Second Circuit, however, found that, as a director, Merkin was a contributor to a finished and inseparable end result. Because it was inseparable, Merkin could not claim an individual copyright on his contribution, and so had no rights over the film. The judges said Congress intended for the copyright law to protect the film as a whole, and, creating individual and separate rights for all contributors would conflict with the right of the work that was intended to be protected.
The appellate court remanded the case for resolution of other legal matters not connected to their copyright findings.