Approximately one month ago, the 9th Circuit released its decision in Garcia v. Google, Inc. In Garcia, a writer/producer by the name of Mark Basseley Youssef cast Cindy Garcia in a minor role in his film. As far as Garcia knew, she was acting in an adventure film set in ancient Arabia called “Desert Warrior.” However, it turned out that [a dubbed over version of] Garcia’s scene was actually used in an anti-Islamic film entitled “Innocence of Muslims.” The film caused uproar (so much so that after the film aired on Egyptian TV an Egyptian cleric issued a fatwa, calling for the killing of everyone involved in the film. In fact, Garcia began to receive death threats soon after). Garcia asked that Google remove video of the film from YouTube (which is where Garcia first discovered her role in “Innocence of Muslims”).
Kozinski justified his decision by noting 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.’…. That is true whether the actor speaks, is dubbed over or, like Buster Keaton, performs without any words at all.” Indeed, some commentators agreed with Kozinski, comparing this case to a singer having copyright in her recorded performance of a song despite the singer not having written the song.
Unsurprisingly, many have taken issue with Kozinski’s holding and agree with the dissenting opinion, which pointed to the lack of support in legal sources that performers are considered authors of an audiovisual work and entitled to copyright protection. Indeed, given that an actor performs his scene to the liking of the director/writer/producer, it seems difficult to categorize an actor as an “author” and more sensible to categorize an actor as an instrument of the director/producer/writer.
Although Kozinski held that Garcia had a copyright in her performance, he also discussed reasons why actors generally don’t have copyright in their performances: an actor’s performance might be a work for hire, or an actor’s participation in a film constitutes an “implied license” to the writer/producer/director. Kozinski explained that in Garcia’s case neither rationale applied – It was not a work for hire because Youssef was not in the “regular business of making films” and Garcia merely fulfilled a brief, specific task (and no written contract existed that deemed it a work for hire). There was no implied license due to the fact that Youssef lied to Garcia to induce her participation, thus negating (or exceeding) any possible grant of an implied license.
Regardless of whether you agree with Kozinski’s distinction above, commentators stress that Kozinski’s holding should still cause some concern to those in the film industry. Indeed, this ruling shifts these cases from a bright line rule (actor’s don’t have copyright in their individual performances) to a cases-by-case analysis that requires the director/producer/writer to defend based on implied (or express) licenses (this would probably be more difficult in low-budget indie films or candid camera style films).
Also, although Kozinski stressed that cases where an implied license is not assumed will be rare (for example, the fact that a director edited an actor’s scene in a way that is not satisfactory to the actor is not a basis for negating an implied license), there still might be worry that actors that are not happy with how their performances turn out in the final version of a film will try and use this case in future lawsuits, which may lead to excessive and frivolous lawsuits.
Lastly, some commentators are left unsure whether this ruling allows actors with signature techniques or famous scenes to sue other actors that “parrot” those performances.
Max Schwartz is a J.D. candidate, ’15, at the NYU School of Law.