April 22, 2014

IDA and FIND File Amicus Brief in Closely-Watched Ninth Circuit Copyright Case

Guest post by recent USC Law grad Rom Bar-Nissim ’13, who was on the legal team on the brief. Clinic interns Patrick Boyle and Patrick McCormick also worked on the project.

On April 15, 2014, the International Documentary Association and Film Independent filed an amicus brief in the Garcia v. Google case in the Ninth Circuit. The brief was prepared by the legal team of Gary L. Bostwick, Jack Lerner, Michael C. Donaldson, Lincoln D. Bandlow and Rom Bar-Nissim.

Garcia v. Google is a copyright case brought by an actress in the highly controversial film The Innocence of Muslims. The actress, who was lied to about the nature of her role, claimed a copyrightable interest in her 5-second performance; the Ninth Circuit Court of Appeals accepted her theory and ordered Google to disable access to all copies of the film.

The Clinic argued that the Ninth Circuit’s opinion will create three forms of chaos for independent filmmakers and will result in a chilling effect on filmmaking activity. First, the opinion makes it unclear to filmmakers when a "copyrightable interest" arises for someone who appears onscreen. Consequently, a filmmaker does not know when or whether to get a release. Second, the court appeared to state that unestablished filmmakers are not "employers...in the regular business of filmmaking" for copyright purposes. Employer status is important for burgeoning filmmakers. If a filmmaker is considered an employer of someone who makes a copyrightable contribution to the film, then the filmmaker owns the copyright in that contribution. Third, the court held that even if the filmmaker had an implied license from the actor or other contributor, there are limits on how far the filmmaker can stray from the actor’s understanding. Unfortunately, the court did not articulate how far the filmmaker can stray.

Ultimately, the chaos created by the Ninth Circuit’s opinion creates so much uncertainty for independent filmmakers that the only way forward will be to retain costly legal counsel. But even with counsel, many films may still be more likely to see a lawsuit then the light of day.

In making our argument, we solicited and used statements from Academy Award-nominated filmmakers like Josh Fox (GasLand) and Scott Hamilton Kennedy (The Garden). We also employed a wide array of films and examples to illustrate our arguments, including Easy Rider, Errol Morris’s Tabloid, skateboard viral videos, and reality TV. We also explored the humble beginnings of filmmakers like Christopher Nolan’s Following, Robert Rodriguez’s El Mariachi, Jim Jarmusch’s Permanent Vacation, and filmmaker Lee Storey who made the documentary Smile ‘Til it Hurts: The Up with People Story in her spare time while working as a lawyer and then successfully beat the IRS in court to be recognized as a filmmaker.

The brief is available here.

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