Actors Have No Copyright in Their Performance

By Marie-Andrée Weiss

On May 18, 2015, the Ninth Circuit held en banc that actress Cindy Lee Garcia does not have a copyright interest in her performance in the Innocence of Muslims movie and that Google can thus not be asked to remove it from all its platforms. The case is Garcia v. Google, No. 12-57302. Many amici curiae filed briefs, which can all be found here.

Garcia had signed up to appear in a low-budget movie, Desert Warrior, and was led to believe the film was about ancient Egyptians. This movie was never completed, but Garcia’s five-second performance was later incorporated by its writer and producer in his anti-Islamic The Innocence of Muslims movie. Garcia’s original lines had been dubbed so that she appeared to ask: “Is your Mohammed a child molester?” The movie was uploaded on YouTube and led to violent protests in the Middle East. It may even have been at the origin of the 2012 attack on the United States Consulate in Benghazi. A fatwa was issued against all people having participated in the movie, and Garcia received death threats.

Garcia filed eight Digital Millennium Copyright Act (DMCA) takedown notices, but Google refused to take the movie down. Garcia then claimed that she had a copyright interest in her performance and sought a preliminary injunction to have Google remove the movie from YouTube. The United States District Court for the Central District of California refused to grant the temporary injunction in November 2012, as Garcia’s copyright claim was not likely to succeed. A three-judge panel of the Ninth Circuit reversed, and issued an injunction to Google to take down all copies of The Innocence of Muslims from YouTube and its other platforms. This decision was later amended to state that the injunction did not encompass movies which did not include Garcia’s performance. The panel’s decision was vacated by the Night Circuit which granted a rehearing en banc. The en banc court affirmed the district court’s decision.

No copyright in a movie performance

Article 7(1)(c) of the 1961 Rome Convention for the Protection of Performers, Producers of Phonograms and Broadcasting Organizations gives performers, including actors, the right to prevent the unauthorized reproduction of a fixation of their performance, if the original fixation had been made without their consent or if the reproduction was made “for purposes different from those for which the performers gave their consent.“ However, the United States did not accede to the Convention and does not recognize otherwise that performers have an individual right in their performance.

Indeed, the Copyright Office refused in March 2014 to register Garcia’s performance because its “longstanding practices do not allow a copyright claim by an individual actor or actress in his or her performance contained within a motion picture. The rationale behind this position is clear: an actor or actress in a motion picture is either a joint author in the entire work, or, as most often is the case, is not an author at all by virtue of a work for hire agreement.”

The three judge panel had found that “[a]n actor’s performance, when fixed, is copyrightable if it evinces “some minimal degree of creativity… `no matter how crude, humble or obvious’ it might be” (at 1263). The panel had further noted that pantomimes and choreographic works may be protected under Section 102 of the Copyright Act and had concluded that “[i]t’s clear that Garcia’s performance meets these minimum requirements.”

But the Ninth Circuit en banc did not agree with this statement, because the Copyright Act only protects original works of authorship fixed in any tangible medium, a fixation which must be done, under 17 U.S.C. §101, by or under the authority of the author. Garcia had not fixed her performance, which was instead fixed by the director and his crew. The en banc court also warned that granting a copyright in a movie performance would “turn cast of thousands into a new mantra: copyright of thousands” (p. 20). It quoted the Community For Creative Non Violence v. Reid case, where the Supreme Court explained that “the author is the party who actually creates the work, that is, the person who translates an idea into a fixed, tangible expression entitled to copyright protection” (p. 22, quoting Reid at 737).

In a rather emotional dissent, Judge Kozinski stated that “Garcia’s dramatic performance met all of the requirements for copyright protection: It was copyrightable subject matter, it was original and it was fixed at the moment it was recorded” (p. 33). He argued that if one considers that “Garcia’s scene is not a work, then every take of every scene of say, Lord of the Rings is not a work, and thus not protected by copyright unless and until the clips become part of the final movie” (p.35). For Judge Kozinski, “a performer need not operate the recording equipment to be an author of his own performance” (p.37).

Could Garcia have been successful by filing different claims?

Garcia’s goal was less to have her performance protected by copyright than to have The Innocence of Muslims taken down from the Web, as its wide dissemination and the ensuing fatwa had caused her “severe emotional distress, the destruction of her career and reputation and credible death threats” (p24). However, the en banc court stated that “[t]his relief is not easily achieved under copyright law… [and] the protection of privacy is not a function of the copyright law… Likewise, authors cannot seek emotional distress damages under the Copyright Act, because such damages are unrelated to the value and marketability of their works” (p.25).

While the en banc court was “sympathetic to her plight … the claim against Google is grounded in copyright law, not privacy, emotional distress, or tort law” (p.8). The court further noted that the “difficulty with Garcia’s claim is that there is a mismatch between her substantive copyright claim and the dangers she hopes to remedy through an injunction. Garcia seeks a preliminary injunction under copyright law, not privacy, fraud, false light or any other tort-based cause of action. Hence, Garcia’s harm must stem from copyright- namely, harm to her legal interest as an author “ (p. 24).

Garcia had originally filed a claim in Los Angeles Superior Court claiming invasion of privacy, false light, violation of her right to publicity, slander and intentional infliction of emotional distress. She voluntarily dismissed her state court suit to file instead a copyright infringement suit in the federal court, but she has since revived her state claims against Youssef. Indeed, she may be able to prove that the director’s conduct has caused her damages.

Copyright and First Amendment

The en banc Court noted that, “[u]nfortunately for Garcia … a “right to be forgotten” although recently affirmed by the Court of Justice for the European Union, is not recognized in the United States” (p. 26). This case, Google Spain SL v. Agencia Española de Protección de Datos, requires search engines to remove links to personal data upon demand of the individual whose personal information is thus displayed. The allusion to the right to be forgotten is interesting as the U.S. is generally viewing it as a threat to freedom of expression.

In this case, Garcia asked an Internet intermediary to take down speech. Justice Kozinski wrote in 2014 as part of the three-judge panel that the words which Garcia seems to utter in the dubbed version of her performance were “fighting words to many faithful Muslims” (Garcia v. Google, at 1262), a choice of words which may have been an attempt to present her dubbed performance as unprotected speech as it is so blasphemous that it triggers violence.

But for the en banc court, this “appeal teaches a simple lesson – a weak copyright claim cannot justify censorship in the guise of authorship” (p. 7) and “Garcia seeks to impose speech restrictions under copyright laws meant to foster rather than repress free expression”(p.8). The en banc court found that the panel’s injunction “censored and suppressed a politically significant film- based upon a dubious and unprecedented theory of copyright” and found it to be “a classic prior restraint of speech” (p. 29).

This case could have had a different outcome in Europe, which recognizes ‘neighboring rights.’ However, these rights cannot trump the rights of the author, and, in this case, Basile is the author of the offensive movie and chose to publish it on YouTube. France recognizes that interpreting artists have a moral right over their performances which may give them the right to prevent publication: the Versailles Court of Appeals held in 2004 that interpreters have moral rights, which are “non-negotiable and stem from each contract, and are outside the contractual scope” and that they “may hinder the unacceptable commercial policy” set by the other contracting party. Also, the Innocence of Muslims movie could be considered unprotected hate speech in Europe, and thus the injunction to take it down could have been successful, which would have made the whole discussion about Garcia’s neighboring rights unnecessary.

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