Google v. Garcia: Full Panel Finds No Copyright for Individual Performance
This week, the full panel of the 9th Circuit Court of Appeals found in Google vs. Garcia that an actress portrayed in the film Innocence of Muslims, Cindy Lee Garcia, did not hold copyright in her performance. The 2012 film, which led to protests and attacks in several Islamic countries because of its insulting content, included a dubbed over version of five seconds of a performance Garcia gave in response to a casting call for a different film, an action-thriller titled Desert Warrior. Last year, a three-judge panel of the 9th circuit issued a preliminary injunction which required YouTube and Google to take down any version of the Innocence of Muslims which included her performance, based on a finding that Garcia would likely prevail on her claim that her performance was independently copyrightable. The full panel has now reversed that holding, and YouTube can post the film.
The Court clarified whether actors, or any other of the many individuals who contribute to the production of a film, have an independent copyright in their specific contribution. A motion picture, qualified as an “audiovisual work” under the Copyright Act, but the Copyright Office denied Garcia copyright protection of her performance, which could not be registered separate from the work itself, a “single integrated work.” This single work includes the contributions of many individuals, resulting in a “joint work” with multiple authors. Garcia disclaimed any authorship in the entire work and instead attempted to protect only her personal contribution. The Court found the Copyright Act does not support this type of protection; if all contributors to a motion picture asserted copyright for individual parts, the film would fragment into many, separately copyrighted works, an untenable theory.
Garcia also did not satisfy the basic requirement of “fixation” to copyright her performance, which the Court found had been fixed by the director and crew rather than the actress. The decision places copyright firmly in the creators of the audiovisual work rather than its participants.
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