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«No. 12-57302 IN THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT CINDY LEE GARCIA, PLAINTIFF-APPELLANT, V. GOOGLE INC. AND YOUTUBE, LLC, ...»

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Case = 12-57302, 12/05/2014, ID = 9339636, DktEntry = 184, Page   1 of 41

No. 12-57302

IN THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

CINDY LEE GARCIA,

PLAINTIFF-APPELLANT,

V.

GOOGLE INC. AND YOUTUBE, LLC,

DEFENDANTS-APPELLEES.

On Appeal from the United States District Court for the Central District of California Case No. CV-12-8315-MWF (VBKx) Honorable Michael W. Fitzgerald, District Court Judge

BRIEF OF AMICI CURIAE SCREEN ACTORS GUILD-AMERICAN

FEDERATION OF TELEVISION AND RADIO ARTISTS; ACTORS'

EQUITY ASSOCIATION; AMERICAN FEDERATION OF MUSICIANS

OF THE UNITED STATES AND CANADA; INTERNATIONAL

FEDERATION OF ACTORS; ALLIANCE OF CANADIAN CINEMA,

TELEVISION, AND RADIO ARTISTS; EQUITY UK; MEDIA,

ENTERTAINMENT AND ARTS ALLIANCE – EQUITY DIVISION

(AUSTRALIA & NEW ZEALAND); AND SOUTH AFRICAN GUILD OF

ACTORS IN SUPPORT OF APPELLANT CINDY LEE GARCIA

DUNCAN CRABTREE-IRELAND

DANIELLE S. VAN LIER

SAG-AFTRA 5757 Wilshire Blvd., 7th Fl.

Los Angeles, CA 90036 Telephone: (323) 549-6627 Facsimile: (323) 549-6624 Email: amicus@sagaftra.org Counsel of Record for Amici Additional Counsel on Next Page Case = 12-57302, 12/05/2014, ID = 9339636, DktEntry = 184, Page   2 of 41

Additional Counsel:

THOMAS R. CARPENTER

GENERAL COUNSEL

ACTORS’ EQUITY ASSOCIATION

165 West 46th Street, 15th Floor New York, NY 10036 Telephone: (212) 869-8530

JENNIFER P. GARNER

IN-HOUSE COUNSEL

AMERICAN FEDERATION OF MUSICIANS

OF THE UNITED STATES AND CANADA

1501 Broadway, Suite 600 New York, NY 10036 Telephone: (212) 869-1330

DOMINICK LUQUER

GENERAL SECRETARY

INTERNATIONAL FEDERATION OF ACTORS

Rue Joseph II 40, B/04 1000 Brussels, Belgium Telephone: +32 (0)2 235 0865

ELICHAI SHAFFIR

COUNSEL FOR ALLIANCE OF CANADIAN CINEMA,

TELEVISION, AND RADIO ARTISTS

CAVALLUZZO SHILTON MCINTYRE CORNISH LLP

474 Bathurst Street, Suite 300 Toronto, ON M5T 2S6, Canada Telephone: (416) 964-1115 Case = 12-57302, 12/05/2014, ID = 9339636, DktEntry = 184, Page   3 of 41

TABLE OF CONTENTS

TABLE OF AUTHORITIES

CORPORATE DISCLOSURE STATEMENT

STATEMENT OF COMPLIANCE WITH RULE 29(c)(5)

CONSENT OF THE PARTIES

INTEREST OF THE AMICI CURIAE

SUMMARY OF ARGUMENT

ARGUMENT

An Actor’s Performance Can Be an Original Work of Authorship A.

and Therefore Copyrightable when Fixed in a Tangible Medium...........9 “Original Works of Authorship”

1.

“…Fixed in a Tangible Medium of Expression”

2.

3. A Performance Can Be Considered a Pantomime or a Dramatic Work

3. This Court Has Previously Acknowledged That a Performance is Copyrightable

4. A Short Performance may be Sufficiently Original to be Protectable

Acknowledging an Actor’s Separate Copyright Interest, in the B.

Rare Circumstances in which it Arises, Will Not Upset the Hollywood Apple Cart nor Place an Undue Burden on Online Content Sites

1. Standard Practices Protect the Audiovisual Industry

2. Technology Companies are Adequately Protected Against Potential Claims

CONCLUSION

–  –  –

Cases Bleistein v. Donaldson Lithographing Co., 188 U.S. 239 (1903)

Feist Publ'ns, Inc. v. Rural Tel. Serv. Co., 499 U.S. 340 (1991)

Fleet v. CBS, Inc., 50 Cal. App. 4th 1911, 58 Cal. Rptr. 2d 645 (Cal. Ct.

App. 1996).

Garcia v. Google, Inc., 766 F.3d 929, 935 (9th Cir. 2014) reh’g granted, No. 12-57302, 2014 U.S. App. LEXIS 21508 (9th Cir., Nov. 12, 2014)...........12 Jules Jordan Video, Inc. v. 144942 Canada Inc., 617 F.3d 1146 (2010)................19 Laws v. Sony Music Entm't, 448 F.3d 1134 (9th Cir. 2006)

Lesley v. Spike TV, 241 Fed. Appx. 357 (9th Cir. 2007)

No Doubt v. Activision Publishing, Inc., 702 F.Supp.2d 1139 (2010)

Richlin v. Metro-Goldwyn-Mayer, 531 F.3d 962 (9th Cir. 2007)

Statutes 17 U.S.C. §101

17 U.S.C. §102

17 U.S.C. §201

17 U.S.C. §301

U.S. Const. Art. I, §8

Other Authorities Chelsea White, Inside Heath Ledger's Private Diary: Batman Star's Heartbroken Father Shares Personal Notes From Joker Journal, MAIL ONLINE, May 31, 2013, available at http://www.dailymail.co.uk/tvshowbiz/article-2334159/Inside-HeathLedgers-private-diary-Batman-stars-heartbroken-father-shares-personalnotes-dark-Joker-role.html





Compendium II, Compendium of U.S. Copyright Office Practices (2d ed.

1984

Emily Yahr, 'Orphan Black’ and Tatiana Maslany Got Snubbed by the Emmy Awards. Here’s Why That’s Not Shocking, THE WASHINGTON POST, July 10, 2014, available at

ii Case = 12-57302, 12/05/2014, ID = 9339636, DktEntry = 184, Page   5 of 41

http://www.washingtonpost.com/blogs/styleblog/wp/2014/07/10/orphan-black-and-tatiana-maslany-got-snubbed-bythe-emmy-awards-heres-why-thats-not-shocking/

F. Jay Dougherty, Not a Spike Lee Joint? Issues in the Authorship of Motion Pictures under U.S. Copyright Law, 49 UCLA L. REV. 225 (2001)

Glen Berry, Screenplay Formatting, FILM UNDERGROUND, available at http://www.filmunderground.com/185/Article/NWFS/ScreenplayFormatting.htm

Google Transparency Report, available at http://www.google.com/transparencyreport/removals/copyright/?hl=en...........28 H.R.REP. No. 94-1476 (1976)

Lesley Goldberg, Emmy's Dark Horse: 'Orphan Black's' Tatiana Maslany, THE HOLLYWOOD REPORTER, June 20, 2013, available at http://www.hollywoodreporter.com/news/orphan-blacks-tatianamaslany-emmys-570175

Reed Tucker, Stan Lee’s Mighty Marvel Cameos,. New York Post, November 4, 2013, available at http://nypost.com/2013/11/04/stan-leesmighty-marvel-cameos/

Sam Gutelle, YouTube’s ContentID System Has Paid Out $1 Billion To Rights Holders, TUBEFILTER, Oct. 15, 2014, available at http://www.tubefilter.com/2014/10/15/youtube-content-id-one-billion............29 Tracy Brown, Meet the ‘Orphan Black’ Clones Face to Face, LOS ANGELES TIMES, May 20, 2014, available at http://graphics.latimes.com/towergraphic-orphan-black-clones-guide/.............15 YouTube.com Copyright Infringement Notification Requirements, available at https://support.google.com/youtube/answer/6005900

YouTube.com Copyright on YouTube, available at https://www.youtube.com/yt/copyright/

YouTube.com Creator Hub, available at https://www.youtube.com/yt/creators/education.html

YouTube.com Frequently Asked Questions, available at https://support.google.com/youtube/answer/2797449?hl=en

YouTube.com How Content ID Works, available at https://support.google.com/youtube/answer/2797370?hl=en

–  –  –

YouTube.com Submit a Copyright Takedown Notice, available at https://support.google.com/youtube/answer/2807622/

–  –  –

Pursuant to Rules 26.1 and 29(c) of the Federal Rules of Appellate

Procedure, Amici provide the following disclosures of corporate identity:

Screen Actors Guild-American Federation of Television and Radio Artists and the American Federation of Musicians of the United States and Canada each certifies that it is a non-profit corporation; it does not offer stock; and it has no parent corporation.

Actors’ Equity Association, International Federation of Actors, Alliance of

–  –  –

Entertainment & Arts Alliance – Equity Section (Australia & New Zealand) and South African Guild of Actors each certifies that it is a non-profit unincorporated association; it does not offer stock; and it has no parent corporation.

–  –  –

Counsel for the parties did not author this brief. The parties have not contributed money intended to fund preparing or submitting the brief. No person other than amici curiae, their members, or their counsel contributed money that was intended to fund preparing or submitting the brief.

–  –  –

Amici represent entertainment industry professionals, including, among others, actors, musicians, and recording artists from around the world who create performances protected under US copyright law. Those performances entertain and inform people everywhere.

Screen Actors Guild-American Federation of Television and Radio Artists (“SAG-AFTRA”) is the world’s largest labor union representing working media artists. SAG-AFTRA – formed through the historic merger of Screen Actors Guild (“SAG”) and the American Federation of Television and Radio Artists (“AFTRA”) in 2012 – represents more than 165,000 actors, announcers, broadcasters, journalists, dancers, DJs, news writers, news editors, program hosts, puppeteers, recording artists, singers, stunt performers, voiceover artists and other media professionals. SAG-AFTRA collectively bargains the wages, hours, and working conditions of its members, including in video games, and exists to secure strong protections for media artists.

SAG-AFTRA has collective bargaining agreements with all of the major motion picture and television production companies, television networks, and commercial producers. These collective bargaining agreements govern the wages, hours, and working conditions of SAG-AFTRA’s members. Artists working under these collective bargaining agreements are employees and, subject to certain

–  –  –

exceptions and reservations of rights, their work is considered “made for hire.” SAG-AFTRA and its predecessor organizations have long fought to preserve the rights of performers and others in their performances, including through nationwide legislative and amicus efforts.

Actors' Equity Association (“AEA”), founded in 1913, is a national labor union affiliated with the AFL-CIO, that represents more than 50,000 stage actors and stage managers in the United States. As the oldest labor organization in the United States representing actors, Equity seeks to advance, promote and foster the art of live theatre as an essential component of our society. Equity negotiates wages and working conditions for members working in live theatre, including recording of theatrical performances and developmental contracts where actors and stage managers participate in a royalty pool in exchange for their creative contributions to the creation of new works of theatre. As an advocate for its members, it is a core function of Equity’s mission to protect the creative contribution of actors to collaborative artistic endeavors.

The American Federation of Musicians of the United States and Canada (“AFM”) was founded in 1896 and represents approximately 80,000 professional musicians throughout North America. The AFM negotiates the wages, hours, and working conditions of musicians in the production of sound recordings, motion pictures, television, commercial announcements, live symphonic, opera and ballet

–  –  –

performances, musical theatre, and video games. As an advocate for the intellectual property rights of performers, the AFM has engaged in national and international political action, including a leadership role in backing the passage of the Digital Performance Rights Act. The protection and advancement of performers’ rights in their performances is a primary interest of the AFM in the fulfillment of its mission and purpose.

The International Federation of Actors (“FIA”) is an international nongovernmental organization that represents 85 trade unions, guilds and associations in more than 70 countries around the world, voicing the interests of professional performers in the audiovisual sector. FIA serves as a forum to promote best practices and as an advocate of performers’ social and economic rights internationally. FIA campaigns vigorously for the intellectual property rights of performers as they serve to enhance their livelihood and protect their reputation.

FIA takes a particular interest in this case as it strongly believes that performers must retain their intellectual property rights in their performance(s), unless such rights are willfully and explicitly transferred to another party by contract or otherwise by operation of law.

The Alliance of Canadian Cinema, Television, and Radio Artists (“ACTRA”) is the national union of professional performers working in the English-language recorded media in Canada. ACTRA represents the interests of

–  –  –

22,000 members across Canada – the foundation of Canada’s highly acclaimed professional performing community. Founded in 1943, ACTRA negotiates collective agreements covering the production of film, television, audio, and digital media production, as well as commercials and videogames. Through its Performers Rights Society (PRS) division, ACTRA collects remuneration from producers and distributors for use of product in all media. And through its Royalty Artists Collection Society (RACS) division, ACTRA administers the statutory rights of musicians and singers in audio production, such rights provided by the Canadian Copyright Act. One of ACTRA’s principal interests is in protecting existing intellectual property rights for performers; and advocating for enhanced protection of performers’ rights nationally and internationally.



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