Queen Mary Journal of Intellectual Property

When is a performance not a performance (but a copyright work)?

Garcia v Google, 743 F 3d 1258 (9th Cir 2014)

Phillip Johnson * and Sheldon W Halpern *

Abstract

The law changes, regularly, but usually incrementally. Occasionally, however, it appears to undergo a seismic shift. In Garcia v Google, 1 a recent split decision of the US Ninth Circuit Court of Appeals, the majority proposes, probably wrongly, such a shift in US Copyright Law – by making an actor's performance a copyright work independent of the material being performed. In so doing, the court now requires us to give serious consideration to matters of international copyright harmonization quite apart from the rather bizarre circumstances of that case.

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