In a recent blog post, Eric Goldman deconstructed Garcia v. Google – a copyright lawsuit that could profoundly impact Internet law. The case basics: an actress wants to copyright her performance in a YouTube video in order to file a DMCA take down request. Why does she want to get the material removed from YouTube? A possible fatwa.
The case is noteworthy because it could potentially upend established case law related to Section 230 of the Communications Decency Act. And a “wrong” ruling in Garcia v. Google could warp-drive us into what Goldman dubs a “parallel-copyright-law-universe.”
The Issue: Actress Looking To Escape Cultural Offense Wants Video Removed From YouTube
Actress Cindy Garcia appeared in the controversial video “Innocence of Muslims” — for a mere five seconds. In the finished film, her voice wasn’t used. Her screen time features a voice over. Unfortunately for Garcia, some Muslims were offended by the dubbed audio statement that accompanied her visage in the film. So, to shorten a long and controversial story, some factions suggested a fatwa against the actress.
Looking to avoid conflict, Garcia asked YouTube to remove the video – Google (YouTube’s mother ship) refused. Determined, Garcia did the next best thing: she tried to gain copyright control of her performance so she could file a proper DMCA takedown notice.
Important Internet Law Legal Consideration: Does Garcia Have The Power To Get The Video Removed From YouTube?
As an actor, Garcia didn’t have an executive stake in the film. So, she tried to claim ownership of her performance.
Goldman explains that the legal crux in Garcia is “fixation”. In order for a party to have a legitimate copyright claim, the work in question must be “fixed” – as Goldman puts it – “in a tangible medium.” A performance written, produced and directed by other people, however, should not be a viable stake on which a copyright claim can be waged. If it were, actors of all stripes – from extras to superstars – would become an unstoppable copyright troll horde. Every single one of them would be able to exercise legal control over any work in which they appeared.
An appeals panel is currently hearing arguments in the case. In the meantime, Goldman’s article is well worth the read and explains the issue at hand in more detail.
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