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Censorship Youtube

9th Circuit Will Revisit "Innocence of Muslims" Takedown Order 158

The Associated Press, as carried by ABC News, reports that "An 11-judge panel of the 9th U.S. Circuit Court of Appeals in Pasadena will hear arguments Monday by Google, which owns YouTube, disputing the court's decision to remove Innocence of Muslims from the popular video sharing service." At the heart of the earlier take-down order, which was the result of a 2-1 split from a 3-judge panel, is the assertion of copyright by actress Cindy Lee Garcia, who appeared in the film, but in a role considerably different from the one she thought she was playing. Google is supported in its appeal by an unusual alliance that includes filmmakers, Internet rivals such as Yahoo and prominent news media companies such as The New York Times that don't want the court to infringe on First Amendment rights. Garcia has support from the Screen Actors Guild and the American Federation of Musicians. If the court upholds the smaller panel's ruling, YouTube and other Internet companies could face takedown notices from others in minor video roles.
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9th Circuit Will Revisit "Innocence of Muslims" Takedown Order

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  • EFF Says: (Score:5, Informative)

    by Jane Q. Public ( 1010737 ) on Monday December 15, 2014 @03:34AM (#48599051)
    EFF and prior legal precedent say that there is no established right of copyright to actors in films... regardless of whether they appear there voluntarily or not.

    The actor's role is different; it is that of an employee or contractor.
    • by Anonymous Coward

      I only have to point at Galicula a movie with big name actors not knowing that there would be porn in that movie as well.

      • by Applehu Akbar ( 2968043 ) on Monday December 15, 2014 @08:11AM (#48599769)

        Wasn't Galicula the one about the dyslexic Roman emperor?

      • If your an actor, hired to be in a historically based film protrayal of a particularly decadent period of Roman Civilization, when ruled by a Ceaser who was discribed as

        sources focus upon his cruelty, sadism, extravagance, and sexual perversity, presenting him as an insane tyrant. Caligula [wikipedia.org]

        and produced by Bob Guccione [wikipedia.org], it's hard to be sympathetic to complaints that it turned into a porno.

    • Re:EFF Says: (Score:5, Insightful)

      by Kjella ( 173770 ) on Monday December 15, 2014 @07:46AM (#48599669) Homepage

      If someone posts a photo taken by me I have a copyright claim.
      If someone posts a photo taken of me by a hidden camera in the shower it's under a different law.
      If someone posts a biography written by me I have a copyright claim.
      If someone posts a biography written about me it might be libel, but not copyright infringement.

      I really don't understand what kind of twisted logic they used to arrive at the conclusion that the actor has any kind of copyright claim, it's always belonged to the one pointing the camera or holding the pen. Assuming the cameraman is making a work for hire it'll pass from him to the company who hired him, the subject never had a claim nor was ever given a claim. It sounds like they wanted to arrive a conclusion and made bizarre leaps of logic to make it happen. I'm sorry but she should have filed a lawsuit and gotten a court to take it down, this copyright claim is simply fraudulent and to add insult to injury she should probably be prosecuted under the "penalty of perjury" clause.

      • Re:EFF Says: (Score:4, Interesting)

        by AmiMoJo ( 196126 ) * on Monday December 15, 2014 @09:08AM (#48600101) Homepage Journal

        Actors can use copyright to control their image. Otherwise there would be no need to pay Schwarzenegger for the CGI versions of him in the next Terminator movie. When an actor plays a role in a film they sign a release allowing use of their image in that film, but the argument here is that the contract was misleading as to the nature of the film and thus invalid, making the user of her image copyright infringement.

        It would be like Arnold agreeing to be in the Terminator 5 or whatever it's called, and then the directors decide to make it a porno with his CGI image and his voice acting used out of context. In that case the contract for an action movie would be invalid and he could use copyright to protect his image,

        • Re:EFF Says: (Score:4, Insightful)

          by guruevi ( 827432 ) on Monday December 15, 2014 @09:39AM (#48600305)

          He may be able to use contract law or the misappropriation/right of publicity laws but not copyright. You cannot copyright yourself or your likeness. Copyright is (or should be) for protecting the creative result of an artist.

          • He confused "Copyright" with "Personality Rights". Twenty six states in the US recognize "Personality Rights" and yes the constitutionality of this state-based right has been upheld by SCOTUS.
        • Well there is Arnold Swenager the person and Arnold Swenager the brand.

          If the media gets their hold of Arnold in some sort scandal. He cannot force that to be removed.
          But if they want to use the Arnold brand for a movie then they will need to do so.

          One is free speech, the other is branding rights.

        • by paiute ( 550198 )

          When an actor plays a role in a film they sign a release allowing use of their image in that film, but the argument here is that the contract was misleading as to the nature of the film and thus invalid, making the user of her image copyright infringement.

          This is a dangerous precedent for Hollywood. Suppose I am a character actor in a major motion picture and my parts mostly end up the floor in the first release of the print. I could now go to court to stop the distribution on copyright grounds because I was mislead as to the extent of my screen time? Any one of the cast could hold the whole movie hostage under this ruling.

      • If someone posts a photo taken by me I have a copyright claim.
        If someone posts a photo taken of me by a hidden camera in the shower it's under a different law.
        If someone posts a biography written by me I have a copyright claim.
        If someone posts a biography written about me it might be libel, but not copyright infringement.

        This all changes when you are being paid for being in said photo, video, whatever.

        That is a paid job, and both the law and legal precedent say that in general, when you are a paid performer, copyright goes to the person who paid for the performance.

        Sorry to disabuse you of this, but that's the way it works. This person was not just some bystander, but a paid performer.

  • We are losing time with this and going back and forth, wasting our tax dollars, because the media is shitting in their pants this will open a precedent for a mere peasant that was part of a film to interfere with their fiefdom.
    • by Anonymous Coward

      Well, it goes many ways to Sunday, but long story short this has potential uses. Just imagine if an extra on Stupid Franchise That Needs To Die VII could get it yanked if "I didn't expect a certain character to make any appearances" could be a valid argument. (Though I joke, misrepresentation of contract is legally dishonest but should have been a tort with the production team, not a DMCA claim with hosts. She should have taken it one rung up the ladder, so to speak - Google is "too late" in that process.)

      • by SQL Error ( 16383 ) on Monday December 15, 2014 @06:12AM (#48599447)

        Well, it goes many ways to Sunday, but long story short this has potential uses. Just imagine if an extra on Stupid Franchise That Needs To Die VII could get it yanked if "I didn't expect a certain character to make any appearances" could be a valid argument. (Though I joke, misrepresentation of contract is legally dishonest but should have been a tort with the production team, not a DMCA claim with hosts. She should have taken it one rung up the ladder, so to speak - Google is "too late" in that process.)

        This exactly. Its not that the actress doesn't have rights here, it's that the court affirmed the wrong rights. If the filmmaker materially misrepresented the film or the role in writing, that should be a fairly straightforward lawsuit.

  • Valid release (Score:5, Insightful)

    by jklovanc ( 1603149 ) on Monday December 15, 2014 @04:04AM (#48599135)

    I think the heart of the issue is That she signed a release for one use but the film was completely different that what she was told. To me it would seem that any release she signed would be invalid and she would have the same rights as someone who did not sign a release. Any film maker would know that everyone in the film must sign a release.

    • Re: (Score:3, Interesting)

      by mwvdlee ( 775178 )

      This.

      This isn't just about the freedom of speech of the director of that movie.
      It's also about the freedom of speech of the actress.
      Not being forced to say something you disagree with is also freedom of speech.

      So what is more important; the freedom to say something or the freedom to not say something?

      • I said nothing about "Freedom of Speech". I don't see how you comment applies to the validity of a legal release.

    • I think that it's more about whether her release allowed the portions she appeared in to be dubbed over or not, and whether dubbing with different lines is allowed or not. I don't know the details, but it seems her claim is that "but ended up in a five-second scene in which her voice was dubbed over so her character asked if Muhammad was a child molester." If she read the script, and that's what it said, that's one thing.....if she read it out and thought it meant something else...but if she played some rol

      • by pbhj ( 607776 )

        >" as if she had spoken them" //

        The actress seems to have a fundamental misunderstanding of her vocation. An actress speaking lines is playing a part, it is not her that speaks, it is her character. If the characters comments are altered by playwrights/directors/whoever then over-dubbing can be required.

        This all seems to be a construction to avoid idiot Islamic adherents, who make the same misunderstanding, causing people [physical] harm. It's definitely nothing to do with copyright; nor is it defamation

      • by jrumney ( 197329 )

        It would be super deceptive in my opinion to get actors in roles, then have them "saying" all sorts of craziness

        Craziness is one thing, if you've ever seen foreign films dubbed into English, you'd know it is standard. The issue in this case was a specific kind of craziness that could get her on some whack-job's hitlist. I'm not supporting the crazies that would want to kill her, and I would defend anyone who willing stood up and said those things, but I don't think the ideal of "Free Speech" should trump h

    • by crossmr ( 957846 )

      Unless the exact role is laid out in the release, she could claim she was told anything. If all the release says is that she allows the user of her image as the director sees fit, then she doesn't have a leg to stand on.

    • I think the heart of the issue is That she signed a release for one use but the film was completely different that what she was told. To me it would seem that any release she signed would be invalid and she would have the same rights as someone who did not sign a release. Any film maker would know that everyone in the film must sign a release.

      ...and the net affect of your assertion would be that anyone... in any video... could demand take down of any video they were in and claim there was no release. Then Google would have to track down the person that posted it, and then the person that recorded it, ask for their "releases" and judge if it covered what was in the video?

      Rulings like this are what will kill the internet. If they rule in the way you suggest, no videos will be on the internet at all. No-one will want the hassle.

      • Why would Google have to do anything? If the producer wants it to be listed, they have to have all their ducks in a line - Google just has to remove it each time its shown that those ducks are not in line and put it back up each time the producer says they are.

        Google doesn't have to check to see if those ducks are valid or not, they go by the assertion of the person putting it up.

        • by JoelKatz ( 46478 )

          I think what you're missing is that this film is newsworthy and publishers of news have a significant interest in keeping that news available. It doesn't matter to Google who gags them, they don't want to be gagged.

          • Im not missing anything of the sort, the post I was replying to was commenting that *Google* would be the one who had to verify that all the paper work was in place, when that is patently not true - they accept a declaration of compliance from the poster, and then they accept a declaration of infringement from a third party. Google doesn't verify anything at all, they let the two parties deal with it between themselves while hosting the video in a manner that conforms with the law (eg the DMCA allows for a

      • Re:Valid release (Score:4, Insightful)

        by StormReaver ( 59959 ) on Monday December 15, 2014 @07:39AM (#48599641)

        Rulings like this are what will kill the internet.

        Do you understand the difference between the Internet and the Web? Do you understand that the Internet has far, far more uses than Youtube, and that the latter is a very minor aspect of what makes the Internet useful?

        That aside, your statement is grand hyperbole. Even if every insignificant actor in every insignificant film distributed on the Web rose up and successfully demanded the removal of every film, the Internet and the Web would be no less useful than it is now.

      • and the net affect of your assertion would be that anyone... in any video... could demand take down of any video they were in and claim there was no release. Then Google would have to track down the person that posted it, and then the person that recorded it, ask for their "releases" and judge if it covered what was in the video?

        This just shows how little you actually know how the DMCA works. Google does not have to track down anything. The procedure is as follows.
        1. Google received a DMCA take down request.
        2. Google takes the video down and informs the poster.
        3. The poster files a counter claim with Google.
        4. If the person that filed the take down request does not provide proof that they have filled a case in court the material goes back up.
        Google does not "judge" anything. It is up to the courts to do that. Few people would go th

    • by Anonymous Coward

      For a signed document to be upheld by courts the document has to have been part of what is called "a meeting of the minds". It appears this release was signed with intent for deceit.

    • by JoelKatz ( 46478 )

      Right, but the question is whether those rights include any copyright in the resulting work. She's going after third parties who have done nothing wrong, not the guy who deceived her.

      • Actors sign release forms such as these [ithentic.com];

        I agree that I will not assert or maintain against ___________________________, your
        successors, assigns and licensees, any claim, action, suit or demand of any kind or nature whatsoever, including but not limited to those grounded upon invasion of privacy, rights of publicity or other civil rights, or for any reason in connection with your authorized use of my physical likeness and sound in the Picture as herein provided.

        Actors in effect sign over their rights as they pertain to the movie. One of those right is copyright. Without a valid release copyright to the actor's image is retained by the actor. The DMCA allows copyright holders to have they property taken down. She is not "going after" Google but Google is going after her. She filed a DMCA and the courts agreed with her position. Now Google is appealing the decision.

        • by Rich0 ( 548339 )

          Actors sign release forms such as these [ithentic.com];

          I agree that I will not assert or maintain against ___________________________, your
          successors, assigns and licensees, any claim, action, suit or demand of any kind or nature whatsoever, including but not limited to those grounded upon invasion of privacy, rights of publicity or other civil rights, or for any reason in connection with your authorized use of my physical likeness and sound in the Picture as herein provided.

          Actors in effect sign over their rights as they pertain to the movie. One of those right is copyright. Without a valid release copyright to the actor's image is retained by the actor. The DMCA allows copyright holders to have they property taken down. She is not "going after" Google but Google is going after her. She filed a DMCA and the courts agreed with her position. Now Google is appealing the decision.

          You do realize that the statement you quoted doesn't mention copyright at all, right? That would because people don't own copyright to their own image. There certainly are other laws that pertain to this, but not copyright, and not the DMCA. Of course, they're trying to claim copyright because copyright in the US is very strongly enforced, and privacy laws in the US generally are not.

          Where in the copyright law is somebody granted rights to any photograph taken of them? If it isn't in the law, then failu

    • by JustNiz ( 692889 )

      Moral judgment doesn't even come itnto it. It depends entirely on the wording in the release. If it placed no limits on the usage or intended purpose and she signed it anyway, then she doesn't have a leg to stand on. Simple.

    • by RyoShin ( 610051 )

      A bit OT, but you reminded me of a similar claim by Kate Mulgrew (aka The Worst Captain) over the geocentrist documentary The Principle [avclub.com].

  • by Anonymous Coward on Monday December 15, 2014 @10:02AM (#48600477)

    I am a vegetarian. What if I decide I am offended by meat by advertised?

    Sounds crazy, but it really is the same thing. People decide what will offend.

    Youtube commentator Pat Condell recently made a great video on the subject.

    Choosing to be offended
    https://www.youtube.com/watch?v=E-sZag4LUNw&list=UUWOkEnBl5TO4SCLfSlosjgg

Whatever is not nailed down is mine. Whatever I can pry up is not nailed down. -- Collis P. Huntingdon, railroad tycoon

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