The Desert Warrior

Actress Cindy Lee Garcia was paid $500 for a bit role in an Arabian adventure film called “Desert Warrior.” Her four pages of script were cut down on the editing floor to five seconds in the finished film, and her dialogue was dubbed over. Unfortunately for Garcia, the film was released on YouTube under the title “Innocence of Muslims” and her character, in a dubbed voice, asks “Is your Mohammed a child molester?” Muslims, who regard any depiction of the prophet Mohammed as sacrilegious and blasphemous, were outraged by the short film and riots erupted worldwide. An Egyptian cleric issued a fatwa calling for the death of everyone involved in the film.

Claiming she had received death threats, Garcia requested Google, which owns YouTube, remove the video from its YouTube site, citing the takedown provisions of the Digital Millennium Copyright Act. The DMCA provides a safe harbor for Websites that allow their users to post content on them. If users post copyrighted material and the copyright owner notifies the Website, so long as the Website removes it upon notification, it’s protected from legal liability for copyright infringement. However, in this case, Google refused, because as a mere actor in a film, Garcia wasn’t the copyright holder.

Garcia sued Google for copyright infringement, claiming she owned the copyright in her performance in the film. The Central District Court of California denied Garcia’s motion for a preliminary injunction to force Google to remove the video. The court stated “[e]ven if this copyright interest were cognizable and proven” - a question the district court didn’t address - “Garcia necessarily (if impliedly) would have granted the film’s author a license to distribute her performance as a contribution incorporated into the indivisible whole of the Film.” That makes sense.

This is where the reality train derails. On appeal, a three-judge panel of the Ninth Circuit framed the issue as “Whether an individual who makes an independently copyrightable contribution to a joint work can retain a copyright interest in that contribution?” In a surprising and perplexing decision written by Chief Judge Alex Kozinski, the panel granted the preliminary injunction, giving novel recognition to the concept of an independent copyright interest of an actor in his or her own performance, separate from the copyrights in the underlying film. The panel’s rationale was that although Garcia didn’t write the words she spoke in the film (in fact, she hadn’t even spoken the words herself), her performance met the requisite minimal creativity to be copyrightable. I was left scratching my head when this decision came out last year. I chose to hold off putting it in the 2014 edition of my book, Issues in Internet Law: Society, Technology, and the Law, because I was sure this wasn’t going to hold up, and since a lot of students learn legal concepts from my book, I thought it best to wait for the dust to settle before confusing them with this strange departure from jurisprudence. This was an example of a court setting a goal of protecting the plaintiff (from bodily harm) and then working backwards to justify the result. Perhaps recognizing this, while refusing to grant Google’s order for an emergency stay, the Ninth Circuit did however modify its injunction so as not to preclude Google from posting a version of the video that didn’t include Garcia’s five-second performance.

Part of the court’s reasoning was that any implied license to use her presumably copyrighted performance (after having established she had such a right as an actor) wouldn’t extend to a film that “differs so radically from anything Garcia could have imagined when she was cast.” While it’s true Garcia was misled and her performance - or at least the audio part - altered, this reasoning puts the court on a dangerous slope. What happens when an actor’s alleged copyright interest in his or her performance runs counter to the director’s vision of the overall project? If every member involved in a large project were to have a competing copyrightable interest, would such projects even be completable? In his dissent, Circuit Judge N. Randy Smith argued Garcia couldn’t have a separate copyright interest in her performance because an acting performance doesn’t constitute a copyrightable “work” under the Copyright Act.

Garcia was effectively asserting a moral right in her performance, which one could sympathize with under the circumstances of pending death threats directed against her, but which could only exist if she truly had a copyrightable interest, which she did not. (Moral rights ensure authors the ability to control the eventual fate of their works. The concept of moral rights isn’t about ownership of the work, but rather about ensuring its integrity by preventing revision, alteration, or distortion, regardless of whom the ultimate owner may be.) In 2015, the Ninth Circuit en banc reversed the panel, affirming the district court, and lifting the injunction prohibiting Google’s YouTube from showing the video, calling the case “a heartfelt plea for personal protection… juxtaposed with the limits of copyright law and fundamental principles of free speech.” The court noted the Copyright Office’s longstanding practice of not allowing a copyright claim by an individual actor or actress in his or her performance. The reality train was back on the tracks.