The dissent spins speculative hypotheticals about copyright protection for book chapters, movie outtakes, baseball games, and Jimi Hendrix concerts. See Dissent at 35, 38. This hyperbole sounds a false alarm. Substituting moral outrage and colorful language for legal analysis, the dissent mixes and matches copyright concepts such as collective works, derivative works, the requirement of fixation, and sound recordings. The statutory definitions and their application counsel precision, not convolution. See, e.g., 17 U.S.C. §§ 101, 103, 114, 201. The citation to Effects Associates, Inc. v. Cohen, 908 F.2d 555 (9th Cir. 1990) (Kozinski, J.), is particularly puzzling. There, neither party disputed the plaintiff's copyright, and the plaintiff independently fixed the special-effects footage and licensed it to the filmmakers. See id. at 556 n.2
The reality is that contracts and the work-made-for-hire doctrine govern much of the big-budget Hollywood performance and production world. See 1 Nimmer on Copyright § 6.07[B][2]. Absent these formalities, courts have looked to implied licenses. See Effects Assocs., 908 F.2d at 559–60. Indeed, the district court found that Garcia granted Youssef just such an implied license to incorporate her performance into the film.[1] But these legal niceties do not necessarily dictate whether something is protected by copyright, and licensing has its limitations. As filmmakers
- ↑ Any copyright claim aside, the district court found that Garcia granted Youssef a non-exclusive implied license to use her performance in the film. Although Garcia asked Youssef about Desert Warrior's content, she in no way conditioned the use of her performance on Youssef's representations. On this record, we cannot disturb the district court's finding as clearly erroneous. Pom Wonderful LLC v. Hubbard, 775 F.3d 1118, at *2 (9th Cir. 2014) (noting that factual findings reviewed for clear error).
