Legal Geek No. 5 - Do Actors Really Have Copyrights in Movie Performances?

Welcome back to Legal Geek! The topic this week is whether a ruling that an actress has a copyright interest in her performance in a movie will change moviemaking forever.

https://archive.org/details/LegalGeekEp05


When the 14-minute Youtube film "Innocence of Muslims" insulted the religion and caused a firestorm in the extremist parts of Islam society a few months ago, many people and even the White House called for the hateful film to be pulled from public channels. However, one of the most interesting pleas came from Cindy Garcia, who appears in the film.

Garcia has claimed in lawsuits that the filmmaker committed fraud on her because she was not apprised of what type of film her performance would be used in, including having no knowledge it had anything to do with muslims at all. One of her more creative bases for suing the filmmaker was that she has a copyright in her performance that has been infringed by the spreading of the film without her authorization on Youtube.

Outlandish legal claims are nothing new, but the Nine Circuit Court of Appeals bought this claim hook, line, and sinker in a ruling earlier this week. Straight-shooting Judge Kozinski wrote the opinion, and he deemed that Garcia provided just enough of her own creative spark to own a limited copyright in her individual creative acting performance, not the scenes at large she appears in or the film as a whole.

But Kozinski has to contort copyright law to get there.  Garcia's contribution to the film is basically a performance of the underlying creative work, which is the screenplay or the film itself.  Such a performance of someone else's creative work is not typically deemed copyrightable by itself, yet that is what Judge Kozinski concludes.  He also must stretch the definition of harm done to Garcia by the infringement and the limits of the implied license given to the filmmaker, while also avoiding the application of the Work Made For Hire doctrine to reach this conclusion.  It's clear when Kozinski calls this situation extraordinarily rare that he is making the ruling work to fit the result he thinks should happen. However, a true maxim from law school rings true in this decision: bad facts make for bad law.

Sure, the filmmaker of Innocence of Muslims is not acting in Garcia's best interests or even nicely, but this ruling in Hollywood's backyard could cause future angry actors to be able to force their edits on producers and directors of movies when they don't agree with the final cut. This could hold up or even pull movies from theaters, which hurts the industry as well as the public.

Expect Youtube's owner Google and the MPAA to team up to contest this ruling, and those strange bedfellows will hopefully turn this around at a full Ninth Circuit ruling or in the Supreme Court. If not, controversial movies like Borat and Bruno will potentially not be possible anymore, as angry prior participants may use IP rights to hold other creatives hostage.

Bottom line: Copyright law does not and should not work this way, as filmmakers should and do have the rights in a movie.  Let's hope that holds up in court.

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Thanks for reading. Please provide feedback and segment topic suggestions to me on Twitter @BuckeyeFitzy or in the comments below.

Legal Geek No. 4 - Does Comcast/Time Warner Merger Have a Chance?

Welcome back to Legal Geek! The topic this week is whether the Comcast and Time Warner proposed merger stands a chance of surviving legal challenges.

https://archive.org/details/LegalGeekEp04


Time Warner has been seeking a merger for quite some time. This is notable because Time Warner is one of only four television providers with more than 11 million subscribers, ranking only behind Comcast's 22 million, DirectTV's 20 million, and Dish Network's 14 million. Every other major competitor is more regional, covering only 3 million to 5 million subscribers.

After weeks of negotiating with owners of a smaller regional provider Charter, Time Warner shocked the business world by agreeing to merge with the biggest cable company Comcast. The proposed merger includes about $45 billion of stock transfer, if it survives. But can it hold up to antitrust scrutiny and legal challenges?

Even after voluntarily dumping about 3 million customers, Comcast would be left with 30 million subscribers, a 30% market share, and potential coverage of 70% of households in America. Those numbers are important because the Federal Trade Commission and Department of Justice tend to heavily scrutinize any merger that ends up with a single entity owning 30% or more of a market share. For example, the AT&T and T-Mobile merger of 2011 that was blocked by the DOJ would have given AT&T 43% of the mobile phone market.

Under Federal law, The Sherman Act discourages monopolies, and The Clayton Act prohibits mergers that "may substantially lessen competition, or tend to create a monopoly." Comcast dropping some subscribers to try and fall back under the magic 30% number will not save the deal, as that is a just rough guideline. Much like the doomed T-Mobile AT&T merger, this deal makes Comcast nearly as large as the entire satellite TV market, and larger than the next 10 biggest cable companies combined. That's a textbook example of what is considered a monopoly.

If the deal were just about television, it might survive thanks to the nationwide satellite providers, but the cable companies also provide internet to most of their subscribers. Which means Comcast would hold the keys to pressuring "cable-cutting" alternatives like Netflix and Amazon, which are for the most part completely reliant on the internet. Net neutrality will only protect these competitors until 2018, and that does not mean Comcast wouldn't call some shots behind the scenes before that goes away.

Thus, the FTC and the DOJ will likely have no choice but to oppose this merger in court. Even some of Time Warner's shareholders have filed a class action lawsuit to try and block the deal. Given that most consumers are already annoyed with the generally poor customer service and always-raising prices of both companies, this deal looks to be dead on arrival.

Bottom line: Although Time Warner's shareholders' class action against the merger is likely doomed to fail, the DOJ will almost certainly invoke the Clayton Act and block this deal to protect healthy market competition. But the bad service from both cable providers will likely continue, despite the irony.

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Thanks for reading. Please provide feedback and segment topic suggestions to me on Twitter @BuckeyeFitzy or in the comments below.

Legal Geek No. 3 - Will Amazon Dominate with Anticipatory Shipping?

Welcome back to Legal Geek! The topic this week is whether Amazon's latest innovation in patenting a method for anticipatory shipping will dominate the retail market.

https://archive.org/details/LegalGeekEp03

Although Amazon's latest patent (US8615473) on a method and system for anticipatory shipping was issued right before Christmas, news outlets have really picked up on this in the last two weeks as the so-called latest innovation from the wildly successful online retailer. The patent claims a process of shipping products from distribution centers to more local hubs in accordance with business variables that are used to determine where those products are likely to be ordered by consumers.

Looking deeper into the description of the patent, these business variables can include everything from standard demand forecasting such as historical shipments and patterns to more sophisticated forecasting based on web page views and duration on pages, how long a cursor remains over product images, and shopping cart and wish list activity. These latter types of forecasting would be innovative, but it is unlikely that they will be used thanks to significant privacy concerns and the high accuracy of standard demand forecasting methods.

Thus, the patent really only covers a process that is highly similar to what larger retailers do while shipping bulk from overseas manufacturers to a first distribution center in the USA. Indeed, Amazon secured an earlier parent patent on a similar method of enterprise anticipatory shipping in December 2011 (US8086546), and the patent application is 10 years old!

So this is not exactly the freshest innovation from Amazon. But the concept of doing this on a consumer level could be the next logical step in dominating the retail competition. Anticipatory shipping, drone delivery, and employing the USPS on Sundays are the types of moves that keeps Amazon ahead of brick and mortal retailers as well as online competitors.

Bottom line: anticipatory shipping is not all that innovative and Amazon's patents on it will be nearly impossible to enforce against competitors, but the potential is there for incredible added innovation and efficiency. Now you'll have to excuse me because I'm almost out of toliet paper and I hear the drone dropping some off on my front porch. Convenient!

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Thanks for reading. Please provide feedback and segment topic suggestions to me on Twitter @BuckeyeFitzy or in the comments below.

Legal Geek No. 2 - Does Twibel Exist?

Welcome back to Legal Geek! The topic this week is whether defamation by libel is a threat to us on social media like Twitter.

https://archive.org/details/LegalGeekEp02

A number of libel lawsuits have been filed for social media defamation, but the first of these lawsuits to actually go to a trial finished last week. The subject of the lawsuit was Courtney Love, who had sent a tweet about her attorney claiming she had been bought off to undermine Love's legal disputes with Kurt Cobain's estate. This has become known as "Twibel" in legal circles.

Libel in the U.S. generally requires publication of a false statement about a particular person or business that seriously shames, ridicules, disgraces, or injures the plaintiff's reputation. Additionally, the defendant must be at fault, which requires only negligence in making the statement for private figures and actual malice for public officials and celebrities. 

Because the attorney allegedly defamed by Courtney Love was a so-called Limited Purpose Public Figure by her association with Love's other trials, she had to prove Love's tweet was false and also actual malice. Love convinced the jury that the tweet was not libel, likely because she thought the allegations were true when she tweeted and thus, the statement was either not false or at least, not malicious.


But Courtney Love's victory does not mean the issue of Twibel is no more. In some countries like Canada, libel does not require a false statement for legal liability, which would make it easier to prove Twibel, especially using the negligence standard for non-public figures. Expect the lawsuits to continue until some court is forced to determine if Twitter and other social media should be subject to the same libel rules as everywhere else.

If so, we all need to be careful about getting into twitter spats in the future. Especially those of you who tend to rake companies and people over the coals by Twitter shaming for perceived injustices. There's a real risk out there, much like the early 2000's when the wild west of Napster and file sharing finally found its day in court.

Don't be the example that becomes legal precedent for the rest of us. The bottom line is, treat people nicely, even on Twitter and other social media.

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Thanks for reading. Please provide feedback and segment topic suggestions to me on Twitter @BuckeyeFitzy or in the comments below.