Garcia v. Google - Harder Letter in Support of 9th Cir Decision

8/12/2019 Garcia v. Google - Harder Letter in Support of 9th Cir Decision

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March 13, 2014

VlA HAND DELIVERYMs. Molly C. DwyerClerk of the CourtUnited States Court of Appealsfor the Ninth Circuit

95 Seventh StreetSan Francisco, California

Re: Garcia v. Google, Inc.Case No. 12-57302

Dear Ms. Dwyer:

1 write to express my support for the Ninth Circuit opinion in Garcia v. Google,Inc., written by Judge Alex Kozinski, and to advocate that en banc review by the Court isunnecessary. I was asked only today to write this letter and submit it to the Court. If l

had more time, the letter would be longer, more researched, and certainly more articulate.First, a brief statement of my background: 1 have been an attorney licensed in a1l

courts of the State of Califomia since 1996. I am admitted to practice before the NinthCircuit, and most or a11 U.S. District Courts within California. 1 also am a member of thebar of the District of Columbia. l graduated from Loyola Law School in Los Angeles in1996 and immediately selwed as a post-graduate Judicial Law Clerk for a United StatesDistrict Judge (Chief Judge Emeritus) of the Central District of California in downtownLos Angeles. Following that one-year clerkship, I entered private practice at a boutique'LISIIVSS 1 1 ,Walt Disney Company. I later became General Counsel of a media company tand itsaffiliated media companies) which had a combined work force of about 150 employees,working out of 4 facilities located throughout the U.S. including California, New Yorkand Maryland. I later returned to working at law firms and focused my practice almostexclusively on entertainment and intellectual property litigation.



Ms. Molly C. DwyerMarch 13, 2014

1 serve as the Editor and Co-Author of the 1aw treatise Entertainment Litigation,which was first published in 201 1 by Oxford University Press. The title was acquired by

LexisNexis last year and the Second Edition (which I recently completed) is scheduledfor publication later this year. The book covers a11 or virtually a11 areas of entertainmentlitigation including copyright, trademark, right of publicity, right of privacy, TalentAgencies Act, labor and employment, profit participation, defamation, anti-slwApp, andinsurance law. While the book focuses on Federal and California substantive 1aw andcivil procedure, it also has chapters dedicated to New York law, Canadian law, and thelaws of the United Kingdom, regarding many of the subject areas listed above.

1 am currently a co-founder and partner of the 1aw t-11-173 Harder Mirell & AbramsLLP, based in Century City (Los Angeles), California. We practice, almost exclusively,entertainment and intellectual property litigation. Within the past tllree years or so, I

have served as lead litigation counsel in civil lawsuits on behalf of Halle Berry,Sandra Bullock, George Clooney, Bradley Cooper, Cameron Diaz, Clint Eastwood,Jude Law, Julia Roberts, Hilary Swank, Reese Witherspoon, and many other actors, aswell as entertainment companies of varying sizes and business areas. (To be clear, 1 amnot writing this letter on behalf of any of my clients, nor do I even know the views of anyof my clients regarding the Garcia v. Google, lnc. case. Rather, l am writing this letterindividually, as a legal practitioner and authon) Lastly, certain entertainment law andintellectual property publications have placed me within their rankings. Among others,The HollywoodReporter has placed me on their nnnual list of the çt-fop 100 PowerLawyers in America'' for the past two years; my name appears among only 30 litigation

attorneys on that list.Second, I have followed - simply as a spectator - the Garcia v. Google, Inc. case.

I found it interesting when I read about the case first being filed. When the U.S. DistrictCourt nzled against the plaintiftl Cindy Lee Garcia, 1 thought that it was unfortunate thata film production company would be able to escape liability for its apparent actions ofrepresenting to Ms. Garcia, an actor, that her performance would be used for a specifictype of film, namely, an adventure film made for entertainment purposes, whenapparently a1l along the production company intended to use her performance for

... -..-- ..-.-..-.-..--.- * .* * * * *

: .. --- .-... -of causing an adverse, and possibly even violent response, by extremist politieal and/or

religious groups internationally. Beyond the basic unfaimess of making a knowinglyfalse representation to the actor, the production company placed the actor's life and well-being at risk, potentially for many years to come, if not for the rest of her life. Ms.Gareia was paid only a few hundred dollars, and acted for only a few days. Any personwho believes injustice would agree that she should have a viable cause of action againstthe production company, and also anyone who distributes or publishes the film, at thevery least to obtain an injunction to stop the distribution of herperformance in the film,



Ms. Molly C. DwyerMarch 13, 2014

and as well to obtain appropriate damages to address the harm that the film's publicationhas caused to her.

Third, Ms. Garcia never signed a written agreement giving the productioncompany, or anyone else, any rights to her performance. Thus, it would seem that shehas a viable claim that she did not consent to allowing the production company anylicense at all to use her performance for any purpose, and certainly not for the film thatultimately was published.

Fourth, even if Ms. Garcia had signed a written agreement granting a license to herperformance, or perhaps even assigning a1l of her rights to that performance, JudgeKozinski's opinion is correct that the production company (according to the plaintiff'sallegations) engaged in a species of fraud, and therefore its false representations to Ms.Garcia have the potential to void any contract that she might have signed.

Fifth, the First Amendment has many limitations. The classic example is that aperson may not shout çlFirel'' in a crowded theater when there is not a fire. The facts inthis case present other limitations, namely, the right of a person to enjoin the use of herperformance in a video that she never authorized. In Aguilar v. Avis Rent a Car Sys.,

th 121 134 87 Cal Rptr. 2d 132 980 P.2d 846 (1999) the Californianc., 2 1 Cal. 4 , , , ,Supreme Court noted several limitations to the First Amendment:

Although stated in broad terms, the right to free speech is not absolute.

(Near v. Minnesota (1931) 283 U.S. 697, 708, 51 S.Ct. 625, 75 L.Ed. 1357(Gûtviberty of speech and of the press is also not an absolute right, and thestate may punish its abuse. Whitney v. Calfornia (41927) 274 U.S. 357, 47S.Ct. 641, 71 L.Ed. 10951; Stromberg v. Calfornia g (1931) 283 U.S. 359,51 S.Ct. 532, 75 L.Ed. 11 17).''q.) Many crimes can consist solely of spokenwords, such as solicitinj a bribe (Pen.code, j 6539, perjury (Pen.code, j1 18), or making a terrorlst tlzreat (Pen.code, j 422). As we stated in In reMS. (1995) 10 Cal.4th 698, 42 Cal.lkptnzd 355, 896 P.2d 1365: ççg-flhestate may penalize threats, even those consisting of pure speech, provided

scope of First Amendment protection. gcitations.) In this context, the goal

of the First Amendment is to protect expression that engages in somefashion in public dialogue, that is, ûççcommunication in which theparticipants seek to persuade, or are persuaded; communication which isabout changing or maintaining beliefs, or taking or refusing to take actionon the basis of one's beliefs....'' ' (Citations.l'' (See also NAACP v.Claiborne Hardware Co. (1982) 458 U.S. 886, 916, 102 S.Ct. 3409, 73L.Ed.2d 12 15, hiilk Wagon Drivers v. Meadowmoor Dairies, lnc. (1941)



Ms. Molly C. DwyerMarch l 3, 2014

312 U.S. 287, 292, 295, 61 S.Ct. 552, 85 L.Ed. 836; Fallon, SexualHarassment, Content Ncz//mfffp, and the First Amendment Dog That Didn 't

Bark (1994) 1994 Sup.ct.lkev. 1, 13.) Civil wrongs also may consist solelyof spoken words, such as slander and intentional infliction of emotionaldistress. A statute that is otherwise valid, and is not aimed at protectedexpression, does not contlict with the First Amendment simply beeause thestatute can be violated by the use of spoken words or other expressiveactivity. (Roberts v. United States Jaycees (1984) 468 U.S. 609, 628, 104S.Ct. 3244, 82 L.Ed.2d 462 ($û gAlcts of invidious discrimination in thedistribution of publicly available goods, services, and other advantagescause unique evils that govelmment has a compelling interest to prevent-wholly apart from the point of view such conduct may transmit.Accordingly, like violence or other types of potentially expressive activities

that produce special harms distinct from their communicative impact, suchpractices are entitled to no constitutional protection.'q.)

The foregoing high court decisions recognize that once a court has found that aspecific pattem of speech is unlawful, an injunctive order prohibiting the repetition,perpetuation, or continuation of that practice is not a prohibited ttprior restraint'' ofspeech.

Likewise, our jurisprudence is saturated with examples of video content beingenjoined because it infringes (or allegedly infringes) on another's intellectual propertyrights. As one of perhaps hundreds of examples, in early 2013, U.S District Judge PhilipS. Gutierrez of the Central District of California granted Wnmer Bros.' application for aninjunction against the distribution of a film called Wgc ofHobbits because it allegedlyinfringed on Warner Bros.' intellectual property rights for a similarly titled film, TheHobbit (Case No. CV 12-9547 PSG).

Sixth, it is unfortunate that Google did not simply remove the video in the firstplace, when Ms. Garcia first explained the situation and asked Google to remove thevideo. A prompt removal would have saved Google, Ms. Garcia, and the Federal court

is a woman who never signed up for a lifetime of death threats, and simply sought to

unwind a fraud that had been committed upon her, and be left alone by those who soughther harm through no fault of her own.

Seventh, 1 would encourage the Court to see past what I can only imagine arelegions of the finest legal practitioners and scholars representing Google - one of theworld's wealthiest companies, with limitless financial resources that surpass mostindustrialized cotmtries. Lady Liberty is blind. She should advocate forjustice, first,



Ms. Molly C. DwyerMarch l3, 2014

last, and always, and not be swayed by the skills of the finest lawyers that money canbuy. As Judge Kozinski correctly found, justice is and should be on the side of Ms.Garcia who thought she was being cast in a B-movie adventure tilm, only to have her lifeturned upside-down by an unscnzpulous film producer and one of the world's wealthiestcorporations that, on principal, refuses to remove a video that was created based on afraud, and has subjected her to pemetual death threats and hate speech. Under thecircumstances, Google should be ordered to remove the video, and to compensate Ms.Garcia for the damages that its refusal have caused her, including full reimbursement ofher legal fees and costs.

Eighth, The HollywoodRegorter published an article on February 28, 2014,regarding the Ninth Circuit's opinlon in Garcia v. Google, Inc., with the below quotesattributed to UCLA Law Professor David Nimmer (who writes the 1 l-volume lawtreatise Nimmer on Copyright), Law Professor Jay Dougheo who serves as Director ofthe Entertainment & Media Law Institute at Loyola Law School in Los Angeles, andDuncan Crabtree-lreland, the General Counsel of Screen Actors Guild-AmericanFederation of Television and Radio Artists (SAG-AFTRA), a11 supportive of the NinthCircuit's ruling in Garcia v. Google, fnc.:

David Nimmer, co-author (with his late father) of an eleven-volume treatiseon copyright that's been cited several thousand times by courts . . . gand)also teaches at UCLA and is of counsel at Irell & Manella - told TIIR thathe agrees with the decision, although he added that the facts of the case

were ûGas squirrely as you could imagine.'' llWhether an actor'sperfonuance contributes copyrightable expression (is) a serious matter offirst impression,'' said Nimmer. ls-fhis is a square ruling that it does.'' But,he acknowledged, tsthe dissent raises cogent questions.'' Said Loyola LawSchool's Jay Dougherty, ûçlimited to this unusual fact pattem, the copyrightownership ruling seems correct.'' Dougherty is the author of acomprehensive 1aw review article, Not a Spike Lee Joint? Issues in theAuthorship of Motion Pictures under U.S. Copyright Law, cited in both themajority and dissent on Wednesday.

**+

ûûSAG-AFTRA is gratified that the Court recognized that an audiovisualproducer carmot rely on copyright 1aw as a shield against those whoseperformances are used without their consent,'' said Duncan Crabtree-Ireland, the union's chief operating officer and general counsel. Gl-l-his caseunderscores the need for a11 parties on a film project to have adequate



Ms. Molly C. DwyerMarch 1 3, 20 14

contractual protections, such as those set forth in the SAG-AFTRAa reements.''

ln light of the foregoing, 1 submit that Garcia v. Google, Inc. was correctlydecided by the Ninth Circuit panel led by Judge Alex Kozinski and, therefore, en bancreview of that decision is unnecessary.

Should you have any questions, please do not hesitate to contact me.

Very truly yours,

..'' '

CHARI,ES J. I-IARDER OfHARDER MIRELL & ABRAMS LLP

Enclosurecc: M. Cris Armenta, Esq.



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'Tldard cases make bad law,'' says an o1d legal adage, and that applies to the Jnnocence ofM'sîfms case according to several experts L' .. .'z' ' .'.'': :. -'' ' ''-.n ' spoke to in the wake '- -:* 4 ' 'k -.' r' 551- 'kTf'z' .' ' '' . -' .z ' ' ' ' . *, :. $ r . ' ' '; .1* t i ..1 ,3 .'.. .. . . t) . 'g s .L .,.. .f . . . ...:in Garcîa v. Google. Others, however, agreed with the ruling-But .. .1 : j c k o ( . .(jj : N pjj :j jy :.. . .. .. xzy . t .. lx ,1;j .. ' '* -he facts of the case are so unusual - allegedly, an egregious fraud and a lackof written ' .)N : 7$ . ..-.a:. .:. r ..,1 .jt. % ;;. . ,... .jj . ... .s ..x y . y.greement - that most of the same experts say the praetical implications of the case are b - r- ... --. - -, . ztc:r'.>- .. .limited. .. .. . .-* - '' : - - -----

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i' (s daneiug on the head of a pin'' distinctçon to some of tlw *'''t''''''?llat sounded like an angeexperts we spoke to. . . Rooney Mara CaM as Tiger Lily in Paniêlt is û terrible rulirtg.'' said UCLA School of I-aw professor Neil Netanel. uThe better

' f t independent 6 ''Captain America: Tbe Winter Soldier?view, as well expressed by the dissent, is that aetors per ormance.s are no Tracking Huge for $80 Million-plus Bebuteopyrightable workq.n

7 qaskade. Avitii, Armln van Bauran toowever, others were supmrtive of the decision, notably ineluding David Nimmen sz.:,- ûelease EDM Remixes of Disney Songsauthor (with his late father) of ân eleven-volume treatise on eopyright that's bep..ri cited

several thounnd times by courts. Nlmrner - who also tëûcites at UCLA and is of cvounsel at s sysw car Accidenl Leaves 2 Dead.23Irell & Manella - told THR that he agreu with the deckion, klthough he added that the Injuredfaets of the ease were ''as squirrely as you could lmagtne-'' '

t' A Train. a Narrow Trestle and 60 SecbndsttWhether an aetor's performance oontributes eopyrighuble expression (is) a serious to Escape: How 'Midnighl Riuer, Victim

Sarah Jon's Lost Her Lifematter of first impressionj'' said Nimmer.edThis isa square rullng that it dou-'' Rutj heaekmowledgedj uth: dissent raises cogent questions-'' l.: Jimmv Fallon Moch Vlatlimîr Putin.

Begins Kickstartef fof New cold WafSaid Loyola Lâw School's Jay Dougherty, ttlimited to this unusual fact pattern, the jaso)copyright ownership ruling seems correct-'' Dougherty ls the author of a eomprehensivelaw review artiile, Not a &ike Leeloint?lnues 1'n theAathorshlb ofMotion Piauresuader U..S'. Copprùht Law. eited irt b0th the majority and disse'nt on Wednesday. ' 'Etl1E2 klgECTI l I' )' I ' ' L'N4 : î5 .' ' i'2 C,1 ; 1 'q ?$,.1 o ç; 1'A 11 t i f'' i I)a ' tr.d iL21 o 'r- i (s>; '

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72: .'réiprdlgynts eontëf'kt ereàtor: akp'tl distribûtors. i'Thtj ptaintlff is very sympathetie-'' (Cindy a ... ... L.t; gïj,. .g -e# t3apria reteived numerous deeth threats as a result of the film.) ' .s ; . -- ' = ' - ' ' '2::11. . . .... ' ' l btttnt ''lt's amateue ijtji' ': .@ ' -..tltjivwjrfjlry of Mà/ylând 1aw p) ofessor Janles Grimme mann was . t...i.&-h,,. . .ljottt' àt tlï. Nirkth Cirettitj'' hê gaid.'dThê opirtlon fëatures th4 Znd of reâsouing I'd expêct .%, ..

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frcirft .a bright but eareluçg student,someone who knows the baskc coneepts of copyrightbut not How they fit together.'' Women ln Entertalnment %12(In this casej the dtcareless student''who wrote the majority opinion is none other than 'PHR'S 21St annual Women in Entertainment

-.breakfast at the Beverly Hills.Hntel, honnring .Alex Kozinski, chief Judge of the 9th Circuit, a former Supreme Court 1aw clerk who was the xoo mcst pcwerful women in the industry.appointed to the appellate bench a mere ten years out of 1aw school-)

RELATE:James Janowitz,chair of the entertainment group at New York's Pryor Cashman, said * KerrywahWgton on Female Superheroes'fsometimes people will twist themselves into a pretzel''to reach a desired decision. . Sandra Fluke on tbewtlmen in EriertgirlmentJanowitz represents production companies and networks. aerjtRepresentatives of talent, not surprisinglyj supported the decision. a ,a.,,, j. .. Ioj,jy..'tSAG-AFTRA is gratlfied that the Court recognized that an audiovisual producer cannot ..rely on copyright 1aw as a shield agagnst those whose performances are used without thelrconsentj'' said Duncan Crabt-e-lreland, the union's chief operating officer and 'general counsel. 'irrhis case underscores the need for a1l parties on a film projeet to haveadequate contractual protections, such as those set forth in the SAG-AFTRA agreements-''

êzI was pleased to read Judge Kozinski's opinion, and feel that it ls the correct view of the . . - .: -lawj'' said Charles Harder, whose firm Harder Mirell & Abrams represents numerous .-icelebrities. awhat the producer did . . . is a species of fraud, and, according to the opinion,

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company, had the actor signed one-'' our roundtable gupsts talkabout their reles asagents and being acknowledged by thefr

One thing most of the experts agreed on was that the sky was not going to fall - at least, not clients.on Hollywood. Is the decislon likelg to lead to more litigation? Netanel, Nimmer, .Dougherty, Janowita and Harder u11 said no. RELATED

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. Animator Rouneable Full InterviewR'Fhere's no need to get too worried about this decisiony'' gaid Janowitz.

o .v t. u jj jp jk, j.But don't try telking that to Grimmelmann.He's quite cottcerned. -. p .zzlqow anyone whose czxpression appears in a film and who doesn't have a signed work-for- ' -> . .'' -

hire agreement has a suffidently plausible copyright claim to wave around the threat of an 'injunction to shut down distributiony' he xid. 'tEven if only one in twenty of themsucceeds, that's enough of a threat to coerce settlements from studios who have committedkrx p oolooe. omkzl zs ovji. o ç'çrxv.rï 1.zx Nlt.e' f'holu 1 a&tyqo% 'arlozld-uzr al r'd'l ::, > : mno nuo.zs 1e.f'illon /vr 1v111



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He adds t'Ies no' just actors. It's set dressers, Foley artistss eamera opera:ors, evenueguy playing tbe barysoon on the soundtrack-'' VIBEO: Next Gen Photo Sb'ot

chezk t'tw:at wem Dn behind thescanes ofWickers too thought there would be an increase in litigation, telling THR, f'J think it would tmrtglkctoshxt for tha Next Gen class of zoao-likely increase litigation. I think that Judge Koalnski was tryirzg to craft somethingvery,very narrow that would ztot have broad application, but I doubt he sueeeeded-Y' RELARB

. 'Bivergenr Star SheeneWoodle.y oneo

Another entertainment litigator, who deelined to be quoted, also %id that more li&igation Wouldwla Figtft Bet-en Trls and K-nisl.Ihe Moeofthe osear stattze 'ight resultSeveral observeu thought tlkere might be an inerease .in takedown reque-sts, whieh is oue of o ' '' c z .' y .- 'Google's eoneerns - presumably its main coneern.

see âIl v'degsWhat k'wn transaetionat lawyers do to reduce the lktigatlon risk? For studio lawyers, whohav/ the luxury of eraftihg ao-page agreements, zanowitz sugg-ts ,a possible tweak to thealready proteetive languâge: add a sentenee itt w'ieh the aetor waives any eopyright r,q..j j ,j jj .-.4,interHt that may exist in hisor her performanee (but be eareful not to imply in the new l ULLUHibl.lattguage that sueh an interest does, in fact. exist).

# F:llow'@'89E&q 12 6K foliowyysBut for smAll4r produetions - indepëndent films, reality s'ows, web produetions ahd thelike - the problem is more diffloult. Betzuse of their smaller budgets, those projects ' TXR. EM.typieally use shorter agreements and are less likely to be rigorously lawyered, as a.-.....a

Grimmelknann points out: 3,183>0*1- TeR. esq''tThis decision) elevates the consequences of screwing up even one piece of paperwork r . .'- -I -from 'mild hassle' to 'potentially eatastrophlc-' Smaller, low-budget, independent, andstudent produetions - ones that don't have experienced lawyers erossing every tanddotting every ?'- are rnost at risk.'' el V2: -'t''î'- :':': :''r't t : :

Nor is it c'lear that paperworkcan be zoo percent effective.

Stlppose, for instance, that Garcia l'ad signed an acting agreement or a release, but had still q((l1i1 /1g E I)T :,: .b/en decreived about the nature of the film, as she alleges. Would she have still prevailed? sIt b4comes a harder casê, but the igsue doesn't necessarily disappear. After all, even awritten agreement is subject to attack for fraud. 'irrhis case gives a little ammunition'' forsuch an argument, Nimmer ackaowledged. ' .

dld : *An4 what if the f/aud weren't as shocking as alleged here, where Garcia's performance was .

all4g4dlg turnêd into a: anti-Mohammed glur? Here too, one has to wonder-Thê majorlty '- ..' .*<s$ ..opinûon gags, t'Garcia was duped into providing an artistic performance that was used in a v. :way she never could have foreseen-'' Is that phrasing broad enough to encompass the frat *boys and others who were ' .; ..'. Ll.:.:' .( ....:sl'::1f in Sacha Baron Cohen's film Boratunder false pretenses?

Those are questions with no easy answers - unless, that is, a larger panel of the 9th Circuittakes the case and decides to reverse-Google has filed its appeal for what is called en bancreview. Those appeals are rarely granted, but this case, with a flurry of amicus briefslikely, may be an exception.

Emaikjhandelgg at gmail dot com

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Garcia v. Google - Harder Letter in Support of 9th Cir Decision

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Transcript of Garcia v. Google - Harder Letter in Support of 9th Cir Decision