A panel majority of the Ninth Circuit Court of Appeals held last month in Garcia v. Google that an actress who had briefly appeared in a movie was likely to have a separate copyright in her performance.
Much has been written about that case. What interested me particularly was the seed of recognition of copyright in a performance, as the European Union (EU) and all the countries which have acceded to the 1961 Rome Convention already recognize as a right.
Here are the facts of the Garcia case. Appellant Cindy Garcia participated, albeit involuntarily, in the making of the short, yet infamous, “Innocence of Muslims” movie.
She had answered a casting call for the amateur “Desert Warrior” movie and was only given parts of the script where her character appeared. Her work lasted only three and a half day. Her five-second performance, as well as the performance of other actors, was later dubbed in post production with the original dialogue being replaced by anti-Islamic words.
Appellant first saw the final movie, renamed “Innocence of Muslims,” after it was uploaded on YouTube by its director in the summer of 2012. An Egyptian cleric issued a fatwa about the film, calling for the death of everybody involved in it. Appellant received direct threats to her life, and started taking security precautions when traveling.
She unsuccessfully filled eight DMCA takedown notices to have YouTube remove the video from its site. She then asked a district court to issue a temporary restraining order to have the video removed, claiming that the video infringed her copyright in her performance.
The district court treated this request as a request for a preliminary injunction and denied it because Appellant did not file her suit until several months after the movie was uploaded to YouTube. She appealed and the Ninth Circuit reversed.
Do Actors Have an Independent Copyright Interest in their Performance?
The question presented to the panel was whether an individual who made an independently copyrightable contribution to a joint work can retain a copyright interest in that contribution.
Appellant argued that, while not owning the copyright in the “Innocence of Muslims” movie, as she is not a joint author, she did own the independent copyright in her performance, albeit “only in the portion of [the movie] that represents her individual creativity.”
The panel agreed, noting that “nothing in the Copyright Act suggests that a copyright interest in a creative contribution to a work simply disappears because the contributor doesn’t qualify as a joint author of the entire work.” As an actress, Appellant interpreted the dialogue, using body language and facial expression, and thus the fact that her voice had been dubbed did not prevent her from making a protectable contribution to the movie as Google had argued.
In his dissent, Judge Smith argued that a performance cannot be a “work.” Indeed, under §102(a) of the Copyright Act, only “original works of authorship fixed in any tangible medium of expression” are being protected by copyright. Judge Smith also argued that the Copyright Act provides a list of categories works which can be copyrighted, and that this list does not includes performance.
However, the list mentions “dramatic works” and one could argue that a performance is a “dramatic work,” especially since the House Report on the Copyright Act stated in 1976 that original works of authorship is “purposely left undefined.”
Judge Smith also argued that a performer is not an author. The Supreme Court defined an author in the Community for Creative Non-Violence v. Reid case as the person “who actually creates the work, that is, the person who translates an idea into a fixed, tangible expression entitled to copyright protection.” Instead, Appellant “simply acted out others’ ideas or script.” However, actors, by interpreting original screenplays, are the creative medium between words and stage directions and the final result fixed on film.
Arguing that performers have some rights in their performance is not such as legal stretch. The law of each of the EU Member States recognizes that performers have the”exclusive right to authorize or prohibit direct or indirect, temporary or permanent reproduction by any means and in any form, in whole or in part” the fixation of their performances. That is because article 2(b) of the 2001/29/EC Directive set out this goal to be achieved by each EU Member State.
Also, article 7 of 1961 Rome Convention for the Protection of Performers, Producers of Phonograms and Broadcasting Organizations provides for some rights for performers, among them the right to prevent the unauthorized reproduction of their rights. However, the United States did not accede to the Convention.
Indeed, the Copyright Office has a longstanding practice to deny claims by actors to register a copyright in their performances in movies, and it is not ready to recognize copyright in a performance. The Copyright Office refused last March 6 to register Appellant’s copyright in her “Innocence of Muslims” performance, writing in a letter to her attorney that “the Office finds that the Copyright Act vests exclusive authority in the Register of Copyrights to render a decision as to issue a certificate of registration or refuse an application for registration.”
The Ninth Circuit obviously made its decision to protect Appellant’s safety and the scope of the ruling is narrow. The panel found that Appellant had indeed granted an implied license to the movie director, but that such license must be interpreted broadly. However, the scope of the license did not encompass the use of her performance for just any project. The panel reasoned that, as the movie director had lied to Appellant, telling her that the movie was an Arabian adventure to secure her participation to his project, the director had exceeded the scope of the implied license. Therefore, the panel concluded that it was an unauthorized, infringing use of the performance.
Image is courtesy of Flickr user Tom Page under a CC BY-SA 2.0 license
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