Post by Shyam Balganesh
A few weeks ago, the Ninth Circuit, sitting en banc, decided the much-anticipated copyright case of Google v. Garcia. The case involved an actress, Cindy Lee Garcia, who was led to believe that she was performing for a film titled Desert Warrior. After her performance was recorded, the producer transformed her five-second performance into a blasphemous movie—Innocence of Muslims—without her consent. He then posted it to YouTube. After receiving multiple death threats, Garcia claimed to be an author of her five-second performance and sought to have the movie taken down from YouTube. Google refused to take it down. The district court rejected her copyright claim, on appeal the Ninth Circuit found that she was an author, and the court then voted to take the case en banc, where the principal question was whether Garcia was an author of a work, enabling her to have the work taken down.
In finding for Google, the en banc majority concluded that it made little sense to treat Garcia as an author. The majority’s conclusion was driven by a concern with copyright ownership fragmentation i.e., it worried that treating every performer in a movie as the author of his/her individual part would result in a multitude of authors and owners. As the court observed:
Garcia’s theory of copyright law would result in the legal morass we warned against …splintering a movie into many different “works,” even in the absence of an independent fixation. Simply put, as Google claimed, it “make[s] Swiss cheese of copyrights.”
Take, for example, films with a large cast—the proverbial “cast of thousands”—such as Ben-Hur or Lord of the Rings. The silent epic Ben-Hur advertised a cast of 125,000 people. In the Lord of the Rings trilogy, 20,000 extras tramped around Middle-Earth alongside Frodo Baggins (played by Elijah Wood). Treating every acting performance as an independent work would not only be a logistical and financial nightmare, it would turn cast of thousands into a new mantra: copyright of thousands.
The court’s concern was a fair one, and its conclusion on Garcia’s claim of authorship in her five-second performance was probably correct. All the same, it failed to fully consider one of copyright law’s thorniest and often misunderstood doctrines, which had some bearing on the case: joint authorship. Simply put, joint authorship (or the “joint work” doctrine) allows courts to treat two or more contributors of copyrightable expression to a work as joint authors of the work if they are shown to have the “intent” to become joint authors. Known as “mutual intent,” this latter requirement has been the source of much confusion in copyright jurisprudence, with courts across the country disagreeing on what such “intent” means, and where it is to be derived from. Most courts agree that it is to be assessed primarily as an objective matter, meaning that two or more parties can become coauthors without planning for it in advance. (I have previously developed a theoretical framework to make sense of the intent requirement, drawing on Michael Bratman’s work on shared intentionality: see Unplanned Coauthorship, 100 Va. L. Rev. 1683 (2014)).
The Ninth Circuit in particular has an extreme version of the joint authorship doctrine, originating in a case known as Aalmuhammed v. Lee, which involved the Denzel Washington movie “Malcolm X.” In that case, the court held that “control” over the production of the work was the single most important factor to be considered in determining joint authorship. While driven to a large extent by the worry that a less onerous requirement could fragment ownership excessively, the court instead developed an approach that all but precluded joint authorship whenever one individual had greater de facto control over the production of the work. In addition, it also contemplated the rather bizarre possibility that a jointly created work could have no author at all, if no one author exercised control over the work as a whole!
Some of us had therefore hoped that the court in Garcia would reconsider its holding in Aalmuhammed. Justin Hughes, Peter Menell, David Nimmer, and I co-authored an amicus brief (on behalf of neither party) urging the court to clarify the law and eliminate the Ninth Circuit’s emphasis on control. Unfortunately, the court chose not to go near the issue, with the observation that “Garcia unequivocally disclaims joint authorship of the film.” Garcia’s lawyers chose not to argue joint authorship, presumably because doing so would not have denied the producer’s own claim as a (joint) author. This gave the court an easy way out. Yet, if Garcia had chosen to argue that she was a coauthor, one wonders if the court would have been willing to revisit its precedent and adopt a more workable (and sensible) approach to the doctrine.
In short then, the confusion about joint authorship in copyright doctrine continues. Few courts are willing to examine the myriad issues involved in its working, including its reliance on basic contract, property, and unjust enrichment ideas for its working. The extraordinary reach of this doctrine is such that given its objective basis, even ordinary contracts between parties (that are not “work made for hire” contracts) can do very little to determine (or avoid) joint authorship status.
Yet another one of copyright law’s analytical mysteries…