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Garcia v. Google: Hard Cases Make Bad Law

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The recent Ninth Circuit case of Garcia v. Google, which held that an actress in a film had an independent copyright interest in her performance embodied in the film, allowing her to get an injunction against the film, was not just wrong -- it was blatantly wrong. But it is a fascinating look at the problems of judicial reasoning.

The truth, for good or ill, is that judges rule with their hearts, and then they add a bunch of words to rationalize what they have done. The problem is that those bunch of words are often senseless and more often come back to cause contortions in later decisions. In this case, the poor, helpless actress was lied to about the purpose of her acting; instead of being in an adventure film set in Arabia, she found herself in an anti-Muslim polemic and the subject of death threats. No wonder the court ruled in her favor.

But how the court got there was a rather remarkable feat of linguistic gymnastics. First, it found that an actor's performance is an "original work" (never mind that it is based on someone else's script and yet another person's direction) that is embodied in a tangible medium -- the film (never mind that someone else did that too). Voila! She had a copyright interest "in her performance." The court also held that she had an independent copyright ownership, since if the court held that she was a co-author of the film, she couldn't stop other co-authors from exploiting it. She hadn't signed a contract, so the court found that her oral or implied consent to use of her "copyright" was invalid due to the misrepresentations made to her (the court would have held the same even if she had signed a contract). And just for good measure, the court also held that she wasn't an employee (to avoid her performance from being a work made for hire), notwithstanding that the entire industry (and the IRS) has thought that actors were employees, thus necessitating the use of loan-out corporations to achieve independent contractor status. So the ends justified the means, the law be damned, even if Hollywood is inadvertently trampled underfoot by the decision.

What the court should have done was support its decision by relying on the actor's right of publicity, without any of the legal contortions the court resorted to. While the right of publicity can be granted by an actor to a producer by implied consent (even without a contract), that consent, even if written, can be vitiated by the type of fraud that occurred here. No consent -- no use of that actor's image in the film. Simple.

So why didn't the court do that? Ah, the secret (not mentioned in the decision) is that because in an earlier case of sloppy reasoning, this same court had come to the rather remarkable conclusion that the right of publicity was preempted by copyright, so whoever owns the copyright to a work is immune from a right of publicity claim. If I digitally take your image and use it in an X-rated film, you can't sue me for violating your right of publicity. That silly decision was based on an earlier case from the mist of time where baseball players on the Baltimore Orioles sued a TV network for broadcasting their games -- oh what a surprise to the players! The court there should have ruled against the players based on an implied license of their right of publicity (they don't get paid as much as they do just for running around on the grass), but the court unfortunately came up with a bunch of words that said that the right of publicity was preempted by copyright, so it ruled against the players on that ground. And the Ninth Circuit subsequently followed that reasoning in a similar case.

Garcia's lawyer's obviously knew their audience and had to get around that bunch of words, so they came up with the copyright argument. Congratulations to them, and I don't blame them, but it is a tragedy for the rest of us that have to live with this lunacy.

So now we are left with two seriously flawed lines of cases -- one holding that the right of publicity is preempted by copyright, and another holding that actors have an independent copyright ownership in their performance as recorded on film. It is enough to make grown lawyers cry.