Page:Garcia v. Google (9th Cir. 2015).pdf/18

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18

Garcia v. Google

cannot register her performance apart from the motion picture."

We credit this expert opinion of the Copyright Office—the office charged with administration and enforcement of the copyright laws and registration.^[1] See Inhale, Inc. v. Starbuzz Tobacco, Inc., 755 F.3d 1038, 1041–42 (9th Cir. 2014). The Copyright Office's well-reasoned position "reflects a 'body of experience and informed judgment to which courts and litigants may properly resort for guidance.'" Southco, Inc. v. Kanebridge Corp., 390 F.3d 276, 286 n.5 (3d Cir. 2004) (en banc) (Alito, J.) (quoting Yates v. Hendon, 541 U.S. 1, 3 (2004)).^[2]

In analyzing whether the law clearly favors Garcia, Aalmuhammed v. Lee, 202 F.3d 1227 (9th Cir. 2000),

↑ As Nimmer notes, when "the question as to copyrightabilty forms the core of the dispute between the parties, . . . input from the Copyright Office—the governmental agency that possesses special expertise in determining the bounds of copyright protection—[can] be of great value." 2 Nimmer on Copyright § 7.16[B][3][b][vi].
↑ The dissent's suggestion that this case is somehow governed by the Beijing Treaty on Audiovisual Performances is misplaced. See Dissent at 38–39. At present, the treaty is aspirational at best. It has yet to take effect because only six countries have ratified or acceded to the treaty—well short of the thirty it needs to enter into force. See World Intellectual Property Organization, Summary of the Beijing Treaty on Audiovisual Performances (2012), available at www.wipo.int/treaties/en/ip/beijing/summary_beijing.html (last visited May 13, 2015). Although the United States signed the treaty in 2012, it has not been ratified by the U.S. Senate. Article II, Section 2 of the Constitution requires the concurrence of a two-thirds majority of that body. The dissent's reference to the fact sheet from the Patent and Trademark Office, which unlike the Copyright Office lacks legal authority to interpret and administer the Copyright Act, is similarly inapposite. See Dissent at 39.

[1] As Nimmer notes, when "the question as to copyrightabilty forms the core of the dispute between the parties, . . . input from the Copyright Office—the governmental agency that possesses special expertise in determining the bounds of copyright protection—[can] be of great value." 2 Nimmer on Copyright § 7.16[B][3][b][vi].

[2] The dissent's suggestion that this case is somehow governed by the Beijing Treaty on Audiovisual Performances is misplaced. See Dissent at 38–39. At present, the treaty is aspirational at best. It has yet to take effect because only six countries have ratified or acceded to the treaty—well short of the thirty it needs to enter into force. See World Intellectual Property Organization, Summary of the Beijing Treaty on Audiovisual Performances (2012), available at www.wipo.int/treaties/en/ip/beijing/summary_beijing.html (last visited May 13, 2015). Although the United States signed the treaty in 2012, it has not been ratified by the U.S. Senate. Article II, Section 2 of the Constitution requires the concurrence of a two-thirds majority of that body. The dissent's reference to the fact sheet from the Patent and Trademark Office, which unlike the Copyright Office lacks legal authority to interpret and administer the Copyright Act, is similarly inapposite. See Dissent at 39.

[1]

[2]