Danny Kaye demanded that New Line pull American History X from distribution because he didn’t like the final cut (which was done by Ed Norton.) He reasoned that his name was on the film so he had that right. As it turned out, he didn’t, but he might have if (1) he hadn’t agreed that his name could be used in association with the film (he was the director, after all), and (2) it was his likeness instead.
What “untrue gossip”? Not being a lawyer, I have little or anything to say about the fine points of the relevant law, and even less interest.
Just as I said, I find the “work” in question vile and repulsive, and does a great disservice to our nation, as well as insulting vast numbers of sincere and worthy Muslims. I note that it has garnered an extraordinary amount of attention, both here and abroad.
Would we even be talking about this otherwise? And perhaps you will specify just what “untrue gossip” I might be scolded for spreading, since the bulk of my post has to do with my concerns about exceptional scrutiny for unpopular opinions. Deservedly unpopular, without a doubt. Hard to imagine I would lie to you about what I think. Not exactly reticent about my opinions.
Of course it’s a legalistic mechanism to achieve a purpose. In civilized society, that’s how we do things. That’s why Garcia reacted to being filmed under false pretenses and the images published in a way that cast her in a defamatory light by filing complaints instead of having her friends and family beat in Jones’ head with a rock.
The decision is pretty irrelevant anyway, at least as it pertains to the video’s availability. It’s not easy to put the genie back into the bottle on the net. A zillion other sites have the video.
But that doesn’t sound like the case here. Garcia was aware she was on camera and giving a performance. What she’s essentially disagreeing with is the way her performance was edited into the final product. But I doubt Garcia had final cut approval which is the only legal grounds she would have to raise an objection.
She always wanted to direct.
The opinion is here (pdf). It is not about the use of her likeness; she did not bring any misuse-of-likeness or defamation claim. It is about whether an actor’s performance in a film is copyrightable, independent of the film itself. This is indeed a relatively novel issue, and the ruling leaves questions in its wake as to the extent to which editing and overdubbing in post-production without an actor’s consent are permissible.
It is even more deserving of contempt, because using murder as a tool to suppress free speech is infinitely worse than just getting butthurt and whining about it.
People like yourself are their cats-paw. You can’t even admit the truth without resorting to euphemism - it’s not that “people die”, it’s that people are murdered, by Muslims, because somebody, somewhere said mean things about a child molester who’s been dead for over a millennium.
I am honored by your contempt, and I thank you.
The majority opinion specifically tries to deal with these issues, though. It alleges that this case is different because there was no contract of work for hire or otherwise giving up copyright. It’s also different because there was possible fraud involved, with the actress being lied to about what her work would be used for. It alleges that the movie she was supposed to be making is so completely different from what what was actually produced as to be two completely different works, and her implied consent only applies to the movie she was supposed to be making. Or to put it in their own words:
*Nevertheless, even a broad implied license isn’t unlimited. See Oddo, 743 F.2d at 634. Garcia was told she’d be acting in an adventure film set in ancient Arabia. Were she now to complain that the film has a different title, that its historical depictions are inaccurate, that her scene is poorly edited or that the quality of the film isn’t as she’d imagined, she wouldn’t have a viable claim that her implied license had been exceeded. But the license Garcia granted Youssef wasn’t so broad as to cover the use of her performance in any project. Here, the problem isn’t that “Innocence of Muslims” is not an Arabian adventure movie: It’s that the film isn’t intended to entertain at all. The film differs so radically from anything Garcia could have imagined when she was cast that it can’t possibly be authorized by any implied license she granted Youssef.
A clear sign that Youssef exceeded the bounds of any license is that he lied to Garcia in order to secure her participation, and she agreed to perform in reliance on that lie. Youssef’s fraud alone is likely enough to void any agreement he had with Garcia. See 26 Samuel Williston &Richard A. Lord, A Treatise on the Law of Contracts § 69:4(4th ed. 2003). But even if it’s not, it’s clear evidence that his inclusion of her performance in “Innocence of Muslims” exceeded the scope of the implied license and was, therefore, an unauthorized, infringing use.
The situation in which a filmmaker uses a performance in a way that exceeds the bounds of the broad implied license granted by an actor will be extraordinarily rare. But this is such a case. Because it is, Garcia has demonstrated that she’s likely to succeed on the merits of her claim. Winter, 555 U.S. at 20.*
Also, while the dissent makes some decent counterpoints, it seems to err in trying to prove wrong every single aspect of the majority decision. Or is it just normal for a dissent to bring up all possible counter arguments?
I stand corrected.
Garcia may certainly have recourse against Youssef for the fraud and the damages she’s undertaken as a result.
But does her five-second appearance in a sixteen-minute the film give rise to an independent copyright? She says that she has a copyright in “her own performance within the film” that is separate and distinct from the copyright in the film as a whole.
The US Copyright Office thinks not. Although they had not issued a decision when the panel ruled, they now have rejected Garcia’s application for a copyright:
Garcia requested the Copyright Office’s approval of her five-second appearance during the progress of her lawsuit.
I think you mean Tony. Danny Kaye was in no condition to be involved, what with being dead and all.
I think the responses are missing the spirit of the OP. From my understanding, the question is not whether this is or is not copyright infringement, but rather a backdoor censorship method.
For example, say that there is a video on YouTube promoting bringing back segregation and calling blacks a bunch of vile names. The government wants it down but they cannot due to freedom of speech. But, they find one of the actors who had a 8 second bit part and induce him to complain that he wasn’t aware of the overall nature of the video and attempt to remove it by way of a copyright suit.
IOW, the real goal isn’t copyright enforcement, but backdoor censorship. Is/should this method be acceptable?
Oh, when you put it that way, No, of course not.
Now, however, someone will need to demonstrate that the government actually somehow ‘induced’ Garcia to file suit.
Christopher Lee was tricked into appearing in a porn film. He narrated an intro or something, unaware it was a porn film and left the set before the porn started. He didn’t manage to get the film pulled.
Potato, moldy potahto.
If there is a scintilla of evidence that the government is coercing the actor, maybe.
Well doesn’t this leave a precedent that if any flighty-headed flibbertygibbet of an actor (an industry well known for its flighty-headed flibbertygibbets) doesn’t like the way he or she appears in a film, they now have a way to censor it? Frankly, it seems like an opening for blackmailing filmmmakers. (“I get 10 percent net or I go* Garcia* on you, Mr. Spielberg!”) Sounds like a very bad precedent is being set here.
I did not know that one, interesting! There were similar complaints from big-name actors in that “Caligula” movie Bob Guccione made, IIRC.