Along with many others, Shyamkrishna Balganesh, Justin Hughes, Peter Menell, and David Nimmer submitted an amicus in Garcia v. Google making a number of interesting arguments; I'm generally sympathetic to the idea that we should be more flexible about joint authorship. But right now I want to talk about a different argument in the brief: they say that, even assuming that Youssef had an implied license to incorporate Garcia's performance, an implied nonexclusive license is nontransferable. (This line of reasoning depends on the idea that Garcia could own a separate copyright in her performance, rather than a share of the copyright in the entire film by virtue of her performance; if she has a share in the entire film, then Youssef is simply her co-owner and his ability to license nonexclusively is unfettered. Which itself is a good reason to conclude that the only viable "work" here is the film as a whole.)
If that's so, then the reassurances of the original panel opinion and SAG that implied licenses will usually solve any failure to enter into work for hire agreements are completely wrong. An implied license may work pretty well when a programmer writes a program for internal use at a business. But Warner Bros. needs to license its rights to Netflix, Amazon, Wal-Mart, etc. If all it has is a nontransferable license, then it has nothing of any value. And remember, Petrella means there's no such thing as a stale copyright claim.
So if a studio didn't get a signed release from one of the extras in Titanic, the question it ought to be asking itself (and its insurers) is: Do you feel lucky? Well, do you? (According to SAG, that's enough for a copyrightable performance.)
Side note: The Balganesh et al. brief also introduces a bit of error into the discussion because of the case's unusual posture--the brief says that Youssef didn't counternotify. But Google didn't take down the video after Garcia's notice, so there was nothing to him to counternotify about. And now that the mandatory injunction requires Google to police all its sites, there's no way to counternotify, even for the multiple non-Youssef parties who wanted to distribute the video in order to discuss its message.
Side note 2: The brief also takes a position on what would happen if Garcia were a joint author of the film that requires a resolution of what is as far as I know a novel question. If she's an author, it says, she can file a DMCA notice based on her authorship of the film; Youssef could then counternotify because he's also an author and thus has the right to put it on YouTube. Perhaps she opens herself up to a 512(f) claim with her notice; but if Google honors it, the film has to stay down for 10 business days regardless of his objections. But sending a DMCA notice requires that the sender own (or act on behalf of an owner of) an "exclusive" right. See 512(c)(3). Is a single co-owner acting alone an owner of an "exclusive" right? My sense is that the right answer is yes, but it does raise the prospect of a co-owner getting undue leverage when another co-owner is using an online intermediary for distribution--and this wouldn't just include YouTube, but also Amazon and other sites that might be generating substantial revenue.
What do you all think?
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I thought Titanic's Spindly Porter had dismissed his claim. Did he refile?
http://www.entlawdigest.com/2014/11/10/3475.htm
My understanding was that he didn't bring a Garcia-type performance copyright claim. But if this rule stands, I don't see why he shouldn't.
Wait. You're saying that if this ruling stands, that an extra in a movie could claim co-authorship status based on their performance in the movie and even go so far as to halt distribution?
This proposition seems entirely untenable to me. It seems to me this would have a chilling effect on movie studios worldwide. Can you imagine movies in which there are no extras and no 'live' on-location scene?
It's worse than that. A coauthor can license subject only to a duty to account to other coauthors. The panel said Garcia owned a separate copyright in her contribution allowing her to block its use entirely. If there's a work for hire agreement a film is fine, but if hey miss one extra, it's not.
I argued in the attached that while licenses are presumptively non transferable, permission to transfer or sublicense should itself be implied in certain contexts, and in fact has been in several cases, starting with Gracen.
http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2384945
The brief mistakes a rule of construction for a rule of law. The cases and treatise sections it cites all trace back to the 1909 Act, with its mandatory intent-thwarting rules on copyright transactions (indivisibility!). But a mandatory rule that nonexclusive licenses are nontransferrable would be in severe tension with the 1976 Act's more tolerant attitude toward transactions.
I suppose it might the true as a conceptual matter that a nonexclusive license is inherently nontransferrable. But unless it's potentially transferrable, or potentially sublicensable, or the licensor has a way to create licenses in potential downstream recipients, you're right that the result is to create a writing requirement through the back door.
Under the rule proposed in the brief, even if seven bishops testify that Vi Jay orally granted the studio a transferrable license, it doesn't matter. Vi Jay CANNOT give the studio one without a signed piece of paper. In fact, the brief doesn't even distinguish implied from express non-exclusive licenses. So Vi Jay actually has to assign his copyright or give an exclusive license. Given the 1976 Act's attitudes towards writings and divisibility, this would be an odd result, to say the least.
On Side Note 2, I agree that it has to be that joint authors independently have "exclusive rights," or else co-owners would never be able to independently exercise the "exclusive rights" of "the owner of copyright" under section 106 -- which is not absurd, I suppose, but not the way anyone's read it. 512(f) is more likely to be a deterrent in the co-owner takedown situation, because there would likely be some actual damages. And it looks like the ISP could itself sue, although that would be odd procedurally.
As a side note to the side note, Bruce, I also think that the ISP might legitimately decline to take the work down if it has reason to believe that an owner posted it, as Google sometimes does with invalid notices (and a notice subject to counternotification by a true owner where we think 512(f) would apply seems invalid) and Wikipedia does w/r/t uses it deems fair.
P.S.: do you have an example of anyone reading 512 to allow a single co-owner to give effective notice when you say "not the way anyone's read it"? I couldn't find anything one way or the other.
No, I haven't seen any discussion of co-owner takedowns. The "it" I was referring to was 106, no one reads "exclusive rights" in 106 to mean that co-owners can't assert them individually. On the side note to the side note, you're right of course, what I was getting at by "procedurally odd" was that the ISP would have to take the material down in order to suffer 512(f) damages and then sue over the losses incurred by taking the material down, but maybe it's not so odd that an ISP might initially conclude that it had been misled by its supplier rather than the notice-provider.
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