Ninth Circuit Court Of Appeals: Actor May Not Enjoin Film Under Copyright Law – Performance Not Copyrightable

Garcia v. Google, Inc., 786 F.3d 733 (9th Cir. 2015)

In Garcia v. Google, Inc., 786 F.3d 733, 737 (9th Cir. 2015), the Ninth Circuit, sitting en banc, reversed a three-judge panel's decision by holding that an actor with merely a bit part in a film does not have a sufficient copyright interest to support a mandatory injunction suppressing the performance, even though, without the actor's permission, the filmmaker edited and dubbed her innocuous portrayal into a blasphemous one that prompted religious extremists to issue death threats against the actor. Although the court refrained from ruling that no mere actor has a copyright interest in a motion picture, noting throughout the opinion that Garcia's performance was only "five seconds" long, the decision may significantly hamper future Hollywood plaintiffs from asserting rights under copyright in a performance or other contribution in a motion picture, large or small.

In 2011, actor Cindy Lee Garcia auditioned for and received a role in a film she was told would be "an action-adventure thriller set in ancient Arabia" entitled Desert Warrior. Id. at 737. She had two lines in the script as written: "Is George crazy?" and "Our daughter is but a child." Id. She shot the scene and earned $500. She claims she did not sign a work-made-for-hire agreement under Section 201(b) of the Copyright Act, which provides that as long as the statutory requirements for work-made-for-hire status are met, the person for whom the work is prepared shall be the owner of the copyright. 15 U.S.C. § 201(b).

Unbeknownst to her, the director, Defendant Mark Basseley Youssef, edited together an entirely different film, "an anti-Islam polemic renamed Innocence of Muslims." Id. Garcia learned of the revision soon after Youssef posted to YouTube in June 2012 a nearly 14-minute movie "trailer" for his film. Id. The trailer portrayed the Prophet Mohammed as a murderous, greedy pedophile. Garcia had five seconds of screen time and a single line, dubbed as "Is your Mohammed a child molester?" Id. The video went viral, was later translated into Arabic, and caused a firestorm—purportedly triggering violent protests overseas and a fatwa to all young Western Muslims to kill those associated with the production. The fatwa explicitly included the actors. Garcia and her family received death threats.

Garcia made multiple demands of Google, YouTube's owner, including several formal requests under the Digital Millennium Copyright Act, 17...