31 Aug Fixated on Garcia – NYSBA Entertainment, Arts and Sports Law Journal
By Marc Jacobson and Marc Pellegrino
Two Federal courts, one in California and the other in New York, recently decided cases involving the question of whether, in the absence of a contract or work-for-hire agreement, a contributor to a film may receive a separate copyright interest in his or her respective contribution, such that he or she might enjoin the exploitation of the film. The two courts yielded drastically different results: In 16 Casa Duse, LLC v. Merkin1 (Merkin), the court held that a
director’s contributions received no copyright protection, while in Garcia v. Google, Inc.2 (Garcia), an extra’s five second appearance was held to be worthy of such protection.
In this article, we argue that the New York district court decision was correct, but that the Ninth Circuit’s decision was incorrect possibly because the appellate court avoided addressing the issue of “fixation.” This appellate decision from a court sitting in California may have a disastrous impact on the motion picture industry. We also address the Ninth Circuit’s apparent intention to enjoin the release of an offensive motion picture, by creating bad law.