Just a Court Case?

Well, maybe not.

You may recall that Cindy Lee Garcia – one of the actors employed in the making of the controversial anti-Islam video “Innocence of Muslims” – is suing the makers of the film, YouTube, its parent company Google, old Uncle Tom Cobbly and all (Well; anyone who has reposted the video). In a US federal court.

Garcia is asserting copyright claims. She wants to prove that actors are entitled to a piece of the copyright when “authoring” their performances on film.

Before filing the new lawsuit, Garcia’s attorney Cris Armenta registered her client’s performance at the U.S. Copyright Office, noting in the registration that the performance was not a work-made-for-hire.

Work-Made-For– Wha…??
Although the general rule is that the person who creates the work is its author, the exception is a work made for hire, which is a work prepared by an employee within the scope of his or her employment, or a work specially ordered or commissioned in certain specified circumstances.

When a work qualifies as a work made for hire, the employer, or commissioning party, is considered to be the author – and owns the legal copyright.

Garcia is going to need to demonstrate why an acting performance is copyrightable.

To be eligible for copyright, Garcia’s work has to be “fixed in a tangible medium.”

The film itself might count, but over the years, courts and legal observers have disagreed about whether the “author” is the person who creates an expression, or the person who literally fixes the expression in a tangible medium.

A Case in Point
In the matter of Aalmuhammed v. Lee, which was decided in 2000 by the 9th Circuit Court of Appeals and had to do with authorship of the Spike Lee film “Malcolm X”, the judgment stated that:

“Everyone from the producer and director to casting director, costumer, hairstylist and ‘best boy’ gets listed in the movie credits because all of their creative contributions really do matter. It is striking in Malcolm X how much the person who controlled the hue of the lighting contributed, yet no one would use the word ‘author’ to denote that individual’s relationship to the movie. A creative contribution does not suffice to establish authorship of the movie.”

It’s clear that Garcia faces a rocky road.

But if it’s true that she never signed a waiver (or release form, which pretty much exempts the producers of the film from liability for anything), never assigned a copyright, and never signed a casting contract that deemed her performance to be a work-for-hire, she could get past the initial roadblocks.

If she is able to assert a valid copyright, it could put YouTube and Google in a position to have to defend themselves under the umbrella of the DMCA safe harbor clause.

DMCA, Safe Harbor. WHA…???

The Digital Millennium Copyright Act (DMCA) is a United States copyright law that implements two 1996 treaties of the World Intellectual Property Organization (WIPO). It criminalizes production and dissemination of technology, devices, or services intended to circumvent (or avoid) measures (commonly known as digital rights management or DRM) that control access to copyrighted works.

It also criminalizes the act of circumventing an access control, whether or not there is actual infringement of copyright itself.

In addition, the DMCA heightens the penalties for copyright infringement on the Internet.

Signed into law by President Bill Clinton on October 28, 1998, the DMCA amended Title 17 of the United States Code to extend the reach of copyright, while limiting the liability of the providers of on-line services for copyright infringement by their users.

It’s that last point which provides YouTube and Google with their umbrella.

Safe Harbor Provision
The Online Copyright Infringement Liability Limitation Act (“OCILLA”), creates a safe harbor for online service providers (OSPs, including ISPs) against copyright infringement liability, provided they meet specific requirements.

OSPs must adhere to and qualify for certain prescribed safe harbor guidelines and promptly block access to alleged infringing material (or remove such material from their systems) when they receive notification of an infringement claim from a copyright holder or the copyright holder’s agent.

OCILLA also includes a counternotification provision that offers OSPs a safe harbor from liability to their users when users claim that the material in question is not, in fact, infringing.

What happens when a copyright holder does send YouTube a copyright notice?

The company believes that it is the copyright owner’s responsibility to inform it of infringing works before any action is taken to remove such works.

YouTube has preferred a system of notices and counter-notices to settle whether a video needs to be removed.

Old Uncle Tom Cobbly, and All?
According to Ms. Garcia’s lawyer, Armenta – in keeping with her client’s copyright claim – sent YouTube five takedown notices.

“Never once did they ask the other parties to dispute our copyright authority. Since they didn’t avail themselves of safe harbor, they are on the hook for copyright infringement.”

Note that OCILLA also facilitates issuing of subpoenas against OSPs to provide their users’ identity.

In the lawsuit, “John Does” are submitted as violating Garcia’s copyright.

A judge is going to have to decide whether the actress’ claims stand a chance, because Armenta is likely to be pressing for subpoenas to identify those individuals who have reposted the video since its release.

Which could be YOU.

THIS Could Be YOU, Too:
Linking to infringing content?

The law is currently unsettled with regard to websites that contain links to infringing material; however, there have been a few lower-court decisions which have ruled against linking in some narrowly prescribed circumstances.

One is when the owner of a website has already been issued an injunction against posting infringing material on their website and then links to the same material in an attempt to circumvent the injunction.

Another area involves linking to software or devices which are designed to circumvent DRM (digital rights management) devices, or links from websites whose sole purpose is to circumvent copyright protection by linking to copyrighted material.

You have been warned.

The moral of this story is:

Be careful what you repost. And where you post it.