In an attempt to save a life, the Ninth Circuit has radically changed copyright law. An actress, Cindy Lee Garcia, was tricked by a director into appearing in an anti-Islam movie called the “Innocence of Muslims.”  Thinking she was auditioning for a thriller entitled “Desert Warrior, Ms. Garcia found her dialogue overdubbed, making it appear she was uttering offensive lines like, “Is your Mohammed a child molester?” An Egyptian cleric issued a fatwa ordering the killing of all involved in making the film and she began receiving death threats.  She sued seeking an injunction that would force YouTube to take down the uploaded movie.  While she may well have several causes of action against the director (breach of contract and fraudulent misrepresentation come to mind), none of the facts recited above should have any relevance in her copyright infringement suit against Google/YouTube.

Her copyright claim is based on the assertion that her performance is protected by copyright and that she is the sole owner of it.  Until the Ninth Circuit opinion, however, courts had always required that a copyrighted work be “fixed in a tangible means of expression” in order to receive protection.  To be sure, a movie performance is “fixed,” but it’s long settled that the author of a visual fixation is the photographer or videographer, NOT the subject of the fixed image.  In other words, Marilyn Monroe is not the owner of the famous picture depicting her skirt billowing upward over a heating grate.  The photographer is.  Sometimes the subjects of images have privacy rights or publicity rights, but until the Ninth Circuit opinion in Garcia v. Google, no court had ever held that the subject of an image in entitled to a copyright.

Could an actor ever establish a copyright in an image or series of images?  Sure, but not by just acting!  Think of Sylvester Stallone in Rocky.  He wrote the script to the movie (a clear fixation) and he directed the photography (another fixation).  These contributions, not his acting, qualify him as a copyright holder.  Previous courts considering the claims of actors have always required the actor to have significant input into the script or control over the filming in order to qualify for protection.  Garcia alleged neither.

Although Hollywood will effectively use contracts to prevent other actors from leaping onto the Garcia bandwagon, the case will surely wreck all sorts of havoc in other corners of copyright law . . . stay tuned here for the fallout.

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