NEW YORK - Does Chief Justice Alex Kozinski of the 9th Circuit Court of Appeals know more about the Copyright Act than the US Copyright Office?
Not according to Google.
In a new brief to the 9th Circuit, Google has asked the entire court to review a controversial Feb. 26 opinion in which Kozinski and Judge Ronald Gould concluded that Google and YouTube must take down video from the explosive film "Innocence of Muslims" because the movie likely infringes the right of an actress, Cindy Lee Garcia, to control her own five-second performance in the film.
Google's new brief argues that Kozinski and Gould misinterpreted the Copyright Act when they found, in an issue of first impression, that Garcia likely has an independent interest in her performance. And the company's lawyers at Hogan Lovells gave the 9th Circuit a good reason why all of the judges on the court should reconsider Kozinski's take on Garcia's rights: A week after his opinion came out, the US Copyright Office rejected Garcia's application to register a copyright on her performance in "Innocence of Muslims."
In a March 6 letter to Garcia's lawyer, Cris Armenta of The Armenta Law Firm, the Copyright Office said that its"longstanding practices" do not allow actors to copyright individual performances within a movie.
Google is not alone in hoping that the 9th Circuit will reconsider the Kozinski opinion. As the brief points out, the possibility that actors with bit parts may have a right to control the distribution of entire movies has struck fear in film producers and documentarians.
Meanwhile, a group of news organisations, including The New York Times and the Los Angeles Times, has filed an amicus brief arguing that the 9th Circuit's takedown order contradicts important First Amendment principles and ought to be reconsidered.
(Technically, the publishers' brief addressed en banc review of the 9th Circuit's decision not to stay the takedown order while Google pursues appeals, but the same arguments also apply more broadly.)