Garcia v. Google Case Reversed
by Mark Litwak on May 20, 2015 in Legal
Last year, I wrote an article titled “Do Your Actors Own Your Film?” criticizing the decision of a three-judge panel of the Ninth Circuit that found an actress who performed a small role was likely to succeed in her copyright claim in the film. The Court accepted the premise that since the actress had never signed a document transferring her rights to the producer, she had an independent copyright interest in the film by virtue of her performance in it. That decision caused uproar in the independent film community as well as among internet companies and copyright law professors because it reversed precedent and appeared to rewrite basic copyright law.
My article was cited in the amicus brief filed by the International Documentary Association and Film Independent urging the Court to reverse the earlier ruling. I am pleased to report that the Ninth Circuit Court has now reversed the prior holding.
Recall that the plaintiff, Cindy Lee Garcia, had agreed to act in an independent film with the working title “Desert Warrior.” She thought she was playing a part in an Arabian adventure story. She worked for three days and was paid $500. However, her scene was never used in an Arabian adventure film. Instead, a five-second clip of Garcia’s performance was used in a different video. Garcia spoke only two sentences: “Is George crazy? Our daughter is but a child?” But, her performance was later dubbed without her knowledge or consent, so that her character now said “Is your Mohammed a child molester?” In June 2012, the creator of the film uploaded a 13:51 minute trailer of the film to YouTube, the video-sharing website owned by Google, Inc. This trailer was extremely offensive to Muslims.
Garcia then contacted Google and attempted to have the trailer taken down from YouTube. Google refused after concluding that she was not one of its owners. The trial court denied her request for an injunction. While she did not claim copyright ownership in the entire film, she asserted that her performance within the film was independently copyrightable and that she retained an interest in that copyright. She argued that her interest should be enough to force Google to take down the trailer from the Internet. A three-judge panel of the Ninth Circuit agreed and ordered the trailer removed from YouTube.
As you may remember, the release of this film caused massive protests and violence and the death of more than 50 people. An Egyptian cleric issued a fatwa, calling for the killing of all those involved with the film, and Garcia received numerous death threats. She was forced to take security precautions and move her home and business. This is the same film that the Obama administration mentioned as the possible cause for the 2012 attack on the U.S. Consulate in Benghazi, Libya.
Nonetheless, the initial Ninth Circuit decision set a terrible precedent because it appeared to grant actors a separate copyright interest in films in which they appeared. Under this rationale, if a producer had not secured the rights to their actors’ performances, a single actor could claim copyright ownership in his or her performance, and halt distribution of a film thereby causing enormous losses to the producers.
Moreover, anyone shooting an amateur video in a public place and then uploading it to the internet could be subject to a claim from any subject caught on camera. Many documentaries and news crews shoot actual events and people. Could a subject portrayed in a negative light claim that because they had not signed a release they were a co-owner of the film?
In reversing the prior decision, the Ninth Circuit explained that one of the essential requirements to obtain a copyright in one’s work is that one must put their work into a fixed tangible medium of expression. That fixation must be done “by or under the authority of the author.” In other words, it has to be put in a fixed medium by the person claiming copyright ownership or someone under his or her direction.
In this case, the producer fixed Garcia’s performance and it was not under her direction. The Court explained “Garcia’s theory can be likened to ‘copyright cherry picking,’ which would enable any contributor from a costume designer down to an extra or best boy to claim copyright in random bits and pieces of a unitary motion picture without satisfying the requirements of the Copyright Act.”
The Court was sympathetic to Garcia’s plight and noted that she might have a remedy under other legal doctrines such as privacy laws or the right of publicity and defamation. But she does not have any interest in the copyright. The opinion and amicus briefs can be read here.