27 February 2014

The Importance of Footnotes Numbered "6" in Twenty-First-Century Copyright Cases

This is just a very short update and reemphasis of why Garcia (noted yesterday) doesn't mean what various parties are running about in panic proclaiming that it means. Just as in Tasini, the critical context appears in footnote 6.

6. Neither party claims that Garcia signed a work for hire agreement. In the district court, Google produced an agreement, purportedly signed by Garcia, that transferred all of her rights in her performance to the film’s producers. Garcia responded by submitting the declaration of a handwriting expert opining that Garcia’s signature had been forged. The district court didn’t address the agreement or its authenticity.

Garcia v. Google, Inc., No. [20]12–57302 (9th Cir. 26 Feb 2014) (PDF), slip op. at 12 n.6. Put another way:

Garcia doesn't happen if the schmuck of a producer follows the statute and does the industry-routine work-for-hire paperwork.

He didn't. He may not have done an assignment of rights, either... but that's a contested factual issue to be resolved on the merits, and the plaintiff's showing here would have been good enough under other precedent to satisfy the "probability of success on the merits" inquiry on this particular issue for a temporary restraining order or preliminary injunction.

I'm a little bit embarassed that so many otherwise perceptive commenters seem to be speculating that Garcia means that every actor in every film now has a copyright interest, and must be joined in any action concerning the film, etc. Bullshit. Most film producers (and certainly major studios) do the bloody paperwork. Garcia seems more a result of the idiocy and insanity of the work for hire doctrine's particular confines and the unusual facts of this case than a change in copyright doctrine. If there is a true takeaway from Garcia, it is that one can't sustain a claim for special treatment under the Copyright Act unless one first follows the Copyright Act. Ironically, that's also the takeaway from Ellison: If one expects to rely upon a safe harbor, one must follow the rules for sailing into it — not just proclaim "We're an ISP under the DMCA, therefore every plaintiff loses!"

Of course, had Chief Judge Kozinski made this point up front in the body of his opinion, there would be less opportunity (not, unfortunately, no opportunity in this era of legal research consisting of structured queries in databases instead of reading the bloody cases and statutes and evidence) to go so completely off the rails. Footnote 6 in Garcia — just like footnote 6 in Tasini, and footnote 4 in Carolene Products — is the real crux of the matter. Too, my inner chemist wants to see the NMR results and not just the article writeup's summary of them; similarly, in a matter that turns this closely on evidence, I want to see the evidence itself (or even just that expert opinion) and not just a judicial gloss on how that evidence fits into one or the other of predetermined narrative choices.

Once again, clarity of reasoning and of later discussion has been sabotaged by the less-helpful customs of legal writing. The citations in the discussion of whether Garcia had an independent copyright interest should have been in footnotes — they rather distract from following the technicalities of the reasoning. This footnote belonged in the main body of the text (probably with record citations!). But that's not the prevailing custom.