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Actor Has No Independent Copyright Interest in Movie Performance

An individual actor has no copyright claim in his or her performance contained in a motion picture, the en banc Ninth Circuit held May 18, relying on the longstanding policy of the Copyright Office. To recognize such individual rights rights in the parts of a motion picture would splinter it into many different “works,” according to the Court, turning the film copyright into Swiss cheese. Garcia v. Google, Inc., 9th Cir., No. 12-57302, 5/18/2015.

The Court acknowledged the seriousness of death threats to the actor that resulted from the film, but held that a causal connection between those threats and copyrights was not shown to establish irreparable harm for injunctive relief. In a dissenting opinion, Judge Kozinsky complained that the majority’s analysis of the copyrightability of an actor’s performance “makes a total mess of copyright law.”

Background

Cindy Garcia was cast in a minor role for a film entitled “Desert Warrior,” produced by Mark Bassely Youssef. She was given the four pages of the script in which her character appeared, and she was paid approximately $500 for three-and-a-half days of filming. The film with that title never materialized, but Garcia’s scene was used in an anti-Islamic film titled “Innocence of Muslims.”

Garcia first saw “Innocence of Muslims” after it was uploaded to YouTube.com, and she discovered only then that her brief performance had been partially dubbed over so that she appeared to be asking, “Is your Mohammed a child molester.” After the film aired on Egyptian television, there were protests that generated worldwide news coverage. An Egyptian cleric issued a fatwa, calling for the killing of everyone involved with the film, and Garcia soon began receiving death threats.

Garcia asked Google to remove the video from YouTube with numerous takedown notices under 17 U.S.C. §512, and she filed her copyright infringement suit when Google refused. Garcia claimed a copyright interest in her performance, which she said was not a work for hire and was never expressly assigned. The district court refused to issue a preliminary injunction, citing Garcia’s failure to prove the alleged harm and finding that the producer had an implied license to use the performance.

A 9th Circuit panel ruled that the injunction was wrongly denied, and an amended ruling limited the scope of any injunction. Those decisions were vacated with the en banc review order.

No Copyrightable Work

The first issue to be addressed is whether Garcia’s five-second acting performance in the film is a “work of authorship” under the Copyright Act. The claimed work is a “motion picture,” defined at 17 U.S.C. §101 as an “audiovisual work[] consisting of a series of related images which, when shown in succession, impart an impression of motion, together with accompanying sounds, if any.”

However, Judge McGeown pointed out that the Copyright Office rejected Garcia’s copyright application, applying its “longstanding policy” not to allow a copyright claim by an individual actor in his or her performance contained in a motion picture. The Court endorsed this policy as follows:

We credit this expert opinion of the Copyright Office—the office charged with administration and enforcement of the copyright laws and registration. … 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.’ ”

The appellate court also relied on its own decision in Aalmuhammed v. Lee, 202 F.3d 1277 (9th Cir. 2000), which denied a performer’s claim of joint authorship in the movie “Malcolm X,” In that decision the Court held that defining a “work” based on some minimal level of creativity or originality would be too broad and indeterminate to be useful.

The principal concern in Aalmuhammed was that such a definition would fragment copyright protection for the unitary film in too many pieces, Judge McGeown wrote, adding that the same concern applies here. Garcia’s theory would splinter a movie into many different “works,” even in the absence of an independent fixation, making “Swiss cheese of copyrights,” he explained. The Court gave examples of films that feature the proverbial “cast of thousands,” which would produce “copyright of thousands.”

The reality of the movie industry is that these issues are generally resolved under contract or implied licensing, the Court noted, but said these formalities don’t dictate whether something is or isn’t copyrightable. The practical consideration is that untangling the complex, difficult-to-access, and often phantom chain of title to tens, hundreds, or even thousands of standalone copyrights is a task that could tie the distribution chain in knots, Judge McGeown pointed out.

The additional flaw in Garcia’s copyright claim is that she did nothing to satisfy the requirement that a copyrightable work be fixed in a tangible medium of expression. It was the producer of the film that reduced her performance to a physical form, not Garcia. In addition, Garcia cannot argue that the film or her appearance was fixed under her authority because she never agreed to the film’s ultimate rendition or how she was portrayed, according to the Court.

Irreparable Harm

The Ninth Circuit sympathized with Garcia’s situation but held that she failed to satisfy the requirement of irreparable harm for a preliminary injunction. Whether or not death threats can qualify as irreparable harm, Garcia’s case fails to satisfy the causation requirement for preliminary relief: the copyright claim does not demonstrate that a preliminary injunction in the form of requiring Google to remove the film from YouTube would eliminate the death threats.

Garcia’s harms are untethered from copyright and copyright’s function as the engine of expression, Judge McGeown explained. The Court did not foreclose that a court in a different circumstance with a strong copyright claim could consider collateral consequences as part of its irreparable harm analysis and remedy. However, this is not that case, the Court concluded.

Concurring and Dissenting Opinions

Judge Waterford agreed with the majority in this case, but pointed out that the decision could have and should have stopped with the “causal connection” analysis for irreparable harm. He was not persuaded that causation was established by Garcia’s expert witness who testified that removing the film from the Internet would support Garcia’s credibility in condemning the film.

Judge Kozinski’s dissenting opinion complained that the majority opinion “makes a total mess of copyright law.” He wrote that Garcia’s performance satisfied every element of copyrightability under the Act, that Aalmuhammed involved a joint authorship claim to an entire movie, and that Copyright Office policy does not trump the statute.

To read the Court's opinion in this case, click here.