Archive: First Amendment and Intellectual Property

Fraud, A Weak Copyright Claim, and What Might Have Been: A Brief Examination of Garcia v. Google, Inc.

by Jennifer Davis, Staff Member (Vol. 15)
March 31, 2017

Cindy Got “Bamboozled”

 When Cindy Garcia responded to a casting call for a film titled Desert Warrior, she did not object to delivering two innocuous seeming lines while “sounding concerned.” She probably would not have objected when in 2012, the director Mark Youssef, translated the film into Arabic, and perhaps she would not even have objected when Youssef changed the name of the film to The Innocence of Muslims.

Cindy did object when the film turned out to be anti-Muslim propaganda. When Youssef uploaded the film to YouTube it sparked outrage. For her small role in the film, Cindy began receiving death threats and a fatwa was issued against her. The media has gone as far as to link The Innocence of Muslims to the attack on Benghazi. As the Ninth Circuit astutely states, Cindy got “bamboozled.”

 Cindy Looks for a Way Out

Youssef repurposed Cindy’s image by changing her words from “Is George crazy? Our daughter is but a child?” to “Is your Mohammed a child molester?”. Cindy first requested that Google, Inc. remove the film from YouTube; she sent five takedown notices citing as “hate speech and [that] violated her state law rights to privacy and to control her likeness.”  Google, Inc. denied her requests. Cindy then filed various tort claims in Los Angeles Superior Court. When her temporary restraining order and preliminary injunction were denied, she dismissed the state court case and the next day filed a complaint against Google, Inc., Youssef, and others involved in the production in the United States District Court for the Central Court of California. Apparently discouraged from the state court’s treatment of her tort claims, Cindy now claimed that she owned the copyright of her role in the film and did not license to Youssef for the anti-Muslim use. The District Court initially denied her injunction, and then on panel review granted it, but ultimately denied it. Cindy then appealed.

In Garcia v. Google, Inc., the Ninth Circuit Court of Appeals affirmed the District Court’s order, finding Cindy did not have a legal copyright for her small role, and in favor of director Youssef’s freedom of expression, denied an injunction directing Google to remove the film from YouTube. The majority opinion held that Cindy’s case “teaches a simple lesson—a weak copyright claim cannot justify censorship in the guise of authorship.” In dicta, the court emphatically  reminded the reading audience that the “Right to Be Forgotten” is not recognized in the United States, although Cindy never attempted to assert the European Union legal doctrine.

In its analysis of the copyright claim, the court insisted that allowing each individual performance involved in the making of a piece of authorship to be copyrighted amounted to “cherry-picking,” and was not the congressional intent of the Copyright Act. The court cited copyright precedent and the expert advice of the U.S. Copyright Office. The court also determined that the relief Cindy sought, was not found under Copyright Law; the damage caused by the film had been done and having the film removed from YouTube would not likely get the fatwa against Cindy removed. Finally the majority cites the Supreme Court saying that copyright is not “categorically immune from challenges under the First Amendment.” This too seems to be the court going on the offense since they did not even find a copyright law to challenge with the First Amendment.

It is worth noting that first panel review by the California District Court found that the copyright claim had merit and that Youssef implicitly granted Cindy a license to perform in his film, as opposed to the panels ultimate factual finding that it was Cindy who granted an implied license to Youssef. Furthermore, the Ninth Circuit’s Judge Kozinski, in his dissent, found the majority “made a total mess of copyright law” because “under our copyright law, the creators of original, copyrightable material automatically acquire a copyright interest in the material as soon as it is fixed.” Even with this small support, one has to question why Cindy chose not to join her tort and contract claims with her federal copyright claim.

The majority opinion suggests that Cindy could have gained more traction under “privacy, fraud, false light or any other tort-based cause of action.” The facts show a good case of fraudulent misrepresentation. Youssef falsely represented the film project and Cindy relied on his representation and then suffered harm by that misrepresentation. More facts would be necessary to show that Youssef acted with knowledge or reckless disregard that the representation was false and that he made the representation for the purpose of inducing Cindy into participating in the film. One fact Cindy has on her side is that the original movie was never made, as opposed to it being made and then later changed.

Cindy may have shorthanded herself by not bringing the fraud claim. Although it is debatable whether the Ninth Circuit would have analyzed any claim outside of the context of the First Amendment, it seemed completely unwilling to “deprive[ ] the public of the ability to view firsthand, and judge for themselves, a film at the center of an international uproar.”

Protecting One Artist’s Expression of Another Artist’s Work: An Analysis of the Intersection of the First Amendment and Copyright Law in Seltzer v. Green Day, Inc.

by Katherine Rippey, Managing Editor (Vol. 16)
November 30, 2016

Oscar Wilde once said, “Art is the most intense mode of individualism that the world has known.” The First Amendment to the United States Constitution is predicated on this concept of individual expression in regards to speech, religion, and even art. This protection of individual consciousness is further protected through copyright laws, where an individual’s work can be protected from duplication in an effort to preserve the creativity and distinct nature of certain products. However, in considering self-expression, it appears contradictory that for your own artistic self-expression you are unable to utilize the works of others as a basis of inspiration.

Courts use the fair use doctrine to settle issues at the cross section of copyright laws and the First Amendment. The fair use doctrine “permits [and requires] courts to avoid rigid application of the copyright statute when, on occasion, it would stifle the very creativity which that law is designed to foster.” When considering whether the use of another’s work is fair use and may avoid copyright infringement, a court considers four factors:

  1. The purpose and character of the use, including whether such use is of a commercial nature or is for non-profit educational purposes;
  2. The nature of the copyrighted work;
  3. The amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
  4. The effect of the use on the potential market for or value of the copyrighted work.

Accordingly, the fair use doctrine combines copyright law with the values of the First Amendment by striking an appropriate balance between competing artists rights, where one’s individual expression can be transformed by another’s expression.

Two Artists’ Approach to Art

Seltzer v. Green Day, Inc. uniquely demonstrates this balance between the competing interests of freedom of artistic expression and the desire to protect original ideas. Green Day, a popular Canadian musical group, utilized the art piece Scream Icon as the video background for the song “East Jesus Nowhere” during their worldwide concert tour. Scream Icon is a street art piece by Dereck Seltzer, which was widely displayed along the streets of Los Angeles. Seltzer attributes his artistic success to this piece, and identifies it as a pivotal piece in his career. In the concert, the piece was modified to fit the religious motif of the song. A red cross was added to the image, and the colors were altered to reflect the esthetics of the concert theme. After learning that Green Day was using the modified Scream Icon image, in March 2010 Seltzer filed suit against the rock group for violating the Lanham Act for direct and contributory copyright infringement.

The court applied the fair use doctrine to the situation, which provided for an intersection between the First Amendment and copyright laws. As applied here, the court deemed that the first factor of the fair use doctrine is used to see whether and to what extent the new work is transformative. The more transformative the work, the less weight will be given to the other factors. Here, the court determined that Green Day’s use of Scream Icon was transformative. The alteration of the work, including the additional elements of the cross and color scheme, satisfied the court that the work had been transformed as to distinguish it from its original form. As such, Green Day’s artistic expression, including their music and overall ambience of the concert setting was a protected form of First Amendment expression and did not violate copyright laws.

Correctly Balancing Competing Interests 

As this case demonstrates, there should be a balance between two artists and their forms of expression. The First Amendment affords citizens the right to their own unique expression and this includes artistic expression of both street art and musical acts. The holding in Seltzer v. Green Day, Inc. expands upon this ideal by standing for the notion that artistic expression should not be stifled even when that artist has been influenced by outside inspirations, including another artist. The decision strikes an appropriate balance between competing artists rights, where an artist retains the ability to act upon a stimulus and transform another work into new artistic material. Although this seems potentially unfair, as you are modifying another’s work into your own, this ultimately is the correct way to balance between the competing interests of the First Amendment and copyright law as it allows for artistic expression that is derivative from another artist’s form of expression.

Furthermore, policy implications suggest that this is the proper result as it would be nearly impossible to utilize your First Amendment rights without avoiding copyright infringement if the fair use doctrine were applied differently. Considering future implications, the court system would be burdened with an overflow of litigation if the fair use doctrine failed to protect transformative work. Endless lawsuits would ensue from the notion that the most marginal use of copyrighted material, in a transformed manner, could be stifled. The ability to express oneself through art is a pivotal protection which the First Amendment affords, and it is unrealistic to believe that artists aren’t inspired by others’ work.

For the foregoing reasons, the fair use doctrine is consistent with the First Amendment and should continue to protect artistic expression.