Guest Post: Garcia v. Google: Opening a Can of Worms?

trouble brewingIn her third post for our SpicyIP Fellowship applicant series, Arundathi Venkataraman, brings us her analysis of the now (in)famous Garcia v. Google case, looking at how it might’ve been dealt with in the Indian context, looking into ‘consent’ and moral rights of a performer. Arundathi is a 4th year student at NLU-Jodhpur. Her previous posts for the Fellowship have included “GI for Yoga? (De)Merits and Consequences” and “Are Copyrights in Logos considered Trademarks for the Purpose of Taxation?” [The deadline for submission of entries for our Fellowship application has now passed. We shall be going over the submissions received thus far and will announce the winners soon].

Garcia v. Google: Opening a Can of Worms?

By: Arundathi Venkataraman

Garcia v. Google in the US 9th Circuit Court is a rather interesting case [find almost everything related to the case here]. Cindy Garcia consented to act in the motion picture ‘Desert Warrior’. This movie never saw the light of day; instead, her performance was used in ‘Innocence of Muslims’ where her voice was dubbed over to make it seem as if she were saying something offensive to Muslims making her the recipient of several death threats. Garcia instituted a case of fraud against the filmmakers, and that case is still pending in the district court. At the same time, she filed for preliminary injunction against Google and YouTube for a copyright infringement in uploading the video without her approval. An interesting argument to ensure her security was made: ‘performance’ in a work that was ‘unitary’ is separately copyrightable. A three-judge panel of the 9th Circuit Court accepted that Garcia had an independent copyright over her performance in the film. This ruling of the Court has been analyzed in several places and here on this blog. The blog post correctly notes that a general ruling that a person’s performance is independently copyrightable would be a dangerous creation of a new category of copyrights.] The question in Garcia however is slightly twisted as it has the added element of intent, or conversely- consent. The Court admitted the case for rehearing by a panel of eleven judges and oral arguments were made on December 15, 2014 [find oral arguments here]. It seems as if most of Garcia’s case hinges on the fact that her consent was not to act in Innocence; that there still exists a copyright claim in her performance which she had not consented away. Therefore, the question then is ‘whether the intention of a performer is a factor at all?’

While dealing with consent in this context, the relevant provision in India is S.38A(2) of the Copyright Act. S.2(qq) states that an actor includes a performer, and S.38A(2) states that when a person, by written agreement, consents to the incorporation of his performance in a cinematograph film, he shall not object to the enjoyment of the performer’s right in the same film by the producer. The word “consent” establishes that consent is proper only when it is given for incorporation in a particular film, not any film. Thus, the context in which the performance is incorporated into the film becomes extremely important. So, a Garcia-like situation would be one where there is no consent. However, even absent this consent, a case of copyright infringement is not made out. At best, the performer has a right to object to the enjoyment of his right. S.38B(b) provides an additional remedy which entitles a performer to restrain or claim damages if there has been any distortion, mutilation or other modification of the performance that prejudices his reputation; this is a ‘moral right of the performer’. However, this is only a right to restrain which is not the same as claiming infringement. Additionally, it appears that both the right to restrain and claim damages, and to object to enjoyment is only against the producer of the film. Therefore, it seems to be that while there are rights that such an actor has against the producer, in no case does it amount to a copyright, and if there is no copyright, there is no valid claim of infringement. This makes for a pertinent enquiry- if Garcia under Indian law is thought of as an author instead of a performer, would things change drastically? This question would matter only if her role meets the requirements of work, and Garcia claims that her act meets the required standard of creativity. So, if there is truth to Garcia’s claim, is there a copyright in this performance that is subsequently infringed? If it is established that the result of the actor’s efforts amounts to work, it appears that all these questions would be answered in the affirmative, and that is the exact risk that the Court would run by considering Garcia’s role as ‘work’. Further, if this role is used in the film such that a substantial part of the film is an infringement of a copyright in the performance, then there would be no copyright that subsisted in the cinematograph film, ‘Innocence of Muslims’ [S.13(3)]. While this may seem fair given the circumstances in which Garcia finds herself, that would be a myopic view ignoring the harmful effects that this principle would have on copyright law. Further, since Garcia’s clip was only 5 seconds long, it’s doubtful section 13(3) would be applicable.

The questions that turn up because of Garcia’s arguments makes understanding of the law quite muddy and it might not be keeping with the spirit in which copyright law exists. If the Court affirms the previous ruling [highly unlikely], it would be the acceptance of the principle that without consent, each person’s performance with required amount of creativity would vest in the actor an independent copyright overlapping with that of another [or as Google argued “the creation of a new category of copyright- turning a unitary work into a patchwork of overlapping copyright claims”]. Additionally it would indicate that originally a film is subject to fragmented and overlapping copyrights which are consented away. That would fly in the face of all jurisprudence that has established the unitary nature of films. It would also mean that every similar case would then hinge on how the search for consent turns out. This would thrust copyright claims into an unnecessary and tangential trajectory. There also exist other remedies for aggrieved actors like Garcia. For instance, a case of fraud can easily be made out. Additionally, there exists a moral right that can be claimed. In light of this, there seems little sense in claiming copyright infringement.

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