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Greg Lastowka

Garcia v. Google: Works Within Works

Garcia v. Google is a strange case.  If you’re not familiar with the basic facts, here is NPR’s summary. The Ninth Circuit’s opinion can be found here (courtesy of the EFF).

Why is it a strange case?  Well, it is not everyday that a copyright infringement lawsuit is predicated on the putative copyright owner’s fear of death threats due to her fraudulently procured authorial contribution to a work viewed by a religious community as blasphemous.  But it is also a strange day when Google, rather than simply taking down a video in response to a DMCA request, decides to take the hard route and challenge the takedown request in federal court. And it is also a strange day when Google “Warns of Harm to Hollywood.” Throw in an absentee essential party (the putative copyright holder in the controversial film) and give all this to an exceptionally creative jurist like Chief Judge Kozinski.  It’s no surprise that we get a strange and controversial opinion.

Much of the internet commentary I have seen on the decision has been negative. Eric Goldman had some initial thoughts (“shockwaves through the internet community”) and Rebecca Tushnet has offered a long, sad blow-by-blow account of both the majority opinion and the dissent in the case.  There are numerous other accounts offered elsewhere–just Google for them.  Notably, though, the majority of the IP experts that I know think the case was decided correctly–on its very strange facts.  See, e.g., David Nimmer and Jay Dougherty quoted here.

Before offering my defense of a part of the opinion, I want to state that, as far as the relief granted goes — and especially with respect to the gag order imposed on Google — I am not a fan of this case.  I’m also not a fan of the majority’s one-line First Amendment analysis. And there are clearly some very loose procedural and factual things afoot here: there are a multitude of “no evidence” assertions by the majority. However, all that said, there is one part of this opinion that seems more or less okay to me: I think it is plausible for an actor like Garcia to own a copyright interest that is infringed by a film that includes her fixed performance.

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The Player-Authors Project

This probably falls under the category of “self-promotion,” but maybe it also explains why I’ve been quiet on Madisonian for the past few months.  I spent the last year working on an intensive empirical research project funded by the National Science Foundation.  I was leading a team of law students to examine the copyright implications of a variety of user-generated content platforms. Our motivation for the research was what we perceived as a gap in the literature. There have been numerous discussions of the phenomenon of UGC, but most legal accounts have been premised on hand-picked examples. There’s nothing wrong with anecdotes, but we thought it would be better to have a statistical sense of UGC. The main question we asked was simply: “What are people actually doing?”Read More »The Player-Authors Project

Lord of the Mockbusters: Applying the Rogers Doctrine to Hobbit(tm)

Suppose you’re making or producing a film and you realize that, with the release of a new Tolkien-based movie, The Hobbit: An Unexpected Journey, many consumers are going to be in the mood for purchasing audiovisual content featuring small people and fantastic settings.  You’d like to be able to profit from that enthusiasm, making a movie about small people and monsters and associated elements of the fantasy genre that Tolkien helped to  create.  There have been plenty of these sorts of movies — see, e.g., from the 1980’s: Time Bandits, Willow, The Dark Crystal. So clearly the Tolkien estate doesn’t have exclusive rights to movies featuring magic, elves, fantasy monsters, and small people.

But does it have the exclusive right to movies in that genre that include the word “Hobbit” in the title?  This is, of course, a question of trademark law.  And the preliminary answer to that question is, apparently, yes.  See the reportage here. In short, the makers of a film entitled “Age of Hobbits” were recently ordered not to distribute their film on the basis that consumers could become confused about the origins or sponsorship of the movie, thinking that the film had some relationship with Tolkien’s books, Peter Jackson’s Lord of the Rings films, and the associated “Hobbit” marketing and merchandising empire.

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