It may seem hard to get upset that the Ninth Circuit recently demanded that YouTube take down The Innocence of Muslims, a poorly made, maliciously offensive, and aesthetically nil film that was the proximate cause for rioting and murder overseas. Little as I will miss it, the ruling has troubling implications.
At issue in the successful suit was the additional problem that the film’s creator actively deceived his actors about the nature of the project. One of the performers, Cindy Garcia, was understandably upset about receiving death threats as a result of having been unwittingly involved in such a contentious project, and she sued to have the film removed from YouTube on the grounds that it was infringing her copyright to her performance.
The Ninth Circuit recently agreed, ruling for Ms. Garcia and demanding that YouTube take down the film. Unfortunately, the legal theory under which the court ruled has pretty awful implications. This is true not only for it as a free speech issue but as an issue of commercial property rights. Understanding the latter makes clear just how scary it is for the former.
The problem with the court’s ruling is that it distributes property rights to multiple parties, potentially without limit. If Ms. Garcia had not sued, one of the other performers could have under the same legal theory as Ms. Garcia. And if none of the performers had sued, the court might have been as willing to develop a ruling premised on protectable contributions by the owners of various equipment, animals, or locations rented for the filming. The problem with such fragmentation of rights is that it renders it impossible to create a project when any party to the project has holdout rights.
You see this frequently in copyright infringement cases. For instance, the tattooist who had inked Mike Tyson’s face sued Warner Brothers for prominently featuring a similar tattoo in the film The Hangover, Part 2. If negotiated in advance, it’s doubtful that the tattooist could have gotten more than a few hundred thousand dollars for the license, but he sought injunctive relief so as to hold the film’s release date hostage. The judge in that case denied injunctive relief but ultimately the studio and the artist reached a settlement.
Holdout rights like those seen in the Hangover case are dangerous because they create a prisoners’ dilemma among holdout stakeholders. This can simply keep certain kinds of expression from happening at all, as seen in the rights thicket that is music sampling and which has driven the layered sound that characterized hip-hop in the late 1980s to the margins of the music industry. To avoid problems like this, companies now try to concentrate rights in a single actor.
Concentrating the rights often takes the form of the work-for-hire doctrine which means that employees of a firm do not retain rights to work created on company time. In effect, work-for-hire is an e pluribus unum model of intellectual property rights for creative collaborations. One indication of the importance of work-for-hire is that when Hollywood studios buy scripts, they sometimes do so under the legal fiction that they are hiring the writer as an employee to write the script as work for hire. (Anyone who has suffered through Das Kapital’s interminable rumination about the ontology of coats and linen can easily imagine the thousands of words of subjunctive chortling that Karl Marx would have devoted to this business practice if his exile had taken him to Burbank instead of London.)
In the Innocence case, the court distinguished between the rights to the film and the right to a particular performance appearing within the film. That is to say, they held that Ms. Garcia had not performed as work-for-hire but her performance had its own independent rights. The court thus argued the work-for-hire doctrine out of existence, thereby fragmenting intellectual property rights, and allowing one owner of the fragmented rights holdout power over the collaborative work.
Now, in fairness to the court, they did try to limit the scope of the finding by suggesting that this was only because Garcia had not explicitly signed a work-for-hire contract. Read: Don’t worry Hollywood, you’re probably immune to this precedent retrospectively and you can be prospectively if you add another line or two to your boilerplate contract. In the best case, the precedent really won’t be a precedent but will be limited to the Innocence case. Even that would simply go to show how results-driven the ruling was, being not a good faith reading of intellectual property law but sophistry directed to protect the life of a sympathetic plaintiff from terrorism by suppressing extremely low-value speech created through fraud.
However it is just as likely that the ruling will not be limited in scope but will apply elsewhere, especially for small actors and/or retroactively. Both are nasty possibilities. Even if we assume that the appropriate contractual waiver can establish work-for-hire, this kind of regulatory overhead is easier for big corporations with legal departments to handle than it is for small actors.
The general problem of the tragedy of the anti-commons is that when many parties all own a piece of something and all of them have to cooperate to make it work, then it is unlikely to work. So far I’ve mostly been discussing this as a problem for commerce, but it also presents potential problems from the perspective of free speech. Traditionally in the United States, if I dislike what you have to say, then that’s my problem. However the Innocence case presents a model wherein I can identify an actor whose contributions are somehow involved in the work and cajole them to press an ownership claim.
A. J. Liebling once quipped that “freedom of the press is guaranteed for those who own one,” but there is a certain truth to the idea that freedom of the press is most coherent when it involves private ownership of assets involved in the expression. By fragmenting the ownership of expression, the Ninth Circuit created another way to silence it. When I can stake a tenuous claim to part of your press, it’s no longer even freedom of the press for those who own one, but for nobody at all.
Gabriel Rossman is associate professor of sociology at the University of California—Los Angeles.
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