In a recent 9th Circuit Court of Appeals decision filed on February 26, 2014, the court ordered YouTube to take down an anti-Muslim video. In correspondence to the decision, many lawyers are thinking that the ruling could give a significant rise in copyright litigation against content creators. Corynne McSherry, who is the director of intellectual property at the Electronic Frontier Foundation believes  that movie makers should be worried.

Some experts in the Intellectual Property field have already expressed disapproving  remarks on the decision. Timothy Wu, a professor at Columbia University Law School thinks it is a terrible decision as mentioned in a chat with Law Blog. Professor Eric Goldman, the director of the High Tech Law Institute at Santa Clara University School of Law stated in his blog post, “I can’t wait for the opinion to be scrapped, as it so richly deserves.” According to these scholars, when copyrights involve movies, the writers and producers own copyrights where “individual actors do not.”

In Garcia v. Google. Inc., Garcia was cast in a minor role where she was given four pages of the script in which she was supposed to perform in exchange for $500.00. The title that was given to her was “Desert Warrior.” This video never emerged. Instead, her performance was used in a video titled, “Innocence of Muslims,” which was uploaded to the popular video streaming website YouTube where some of her parts were dubbed over so that she appeared to be saying, “Is your Mohammed a child molester?”

The video created worldwide news coverage and outrage among Egyptians. A cleric even called for the killing of everyone involved in the film. Garcia herself began receiving death threats. Garcia then, asked Google to take down the video. When Google refused, Garcia brought suit.  In her claim, Garcia filed eight takedown notices under the Digital Millennium Copyright Act. Google resisted, so Garcia furthered by applying for a temporary restraining order seeking removal of the video. The district court treated this as an application for a preliminary injunction but was denied. On appeal, four factors were considered. Among those are  a plaintiff’s likely success on the merits,  the likelihood that irreparable harm will result if an injection does not issue,  and the balance of equities and the public interest.

Under the plaintiff’s likely success on the merits, the court considered  whether her performance in the film was copyrightable and  if copyright interest entitled her to demand that YouTube take down the film. Google argued that an actor with a minor role in the video did not have a copyright interest. The Federal District Court denied Garcia’s request; however, the court was reversed  ruling that Garcia did indeed have a copyright interest in the film and that she did not give any sort of consent to the filmmakers to use her work in the way that they did. As a result, YouTube was ordered to take down the film. Google claims that they will fight this decision.

In the opinion it is stated that, “Whether an individual who makes an independently copyrightable contribution to a joint work can retain a copyright interest in that contribution is a rarely litigated question…. [though there is] nothing in the Copyright Act [that] suggests that a copyright interest in a creative contribution to a work simply disappears because the contributor doesn’t qualify as a joint author of the entire work.” According  to Feist Publ’ns, Inc. v. Rural Tel. Serv. Co., 449 U.S. 340, 345(1991). An 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.”

In a personal opinion, I believe the outcome of this case was indeed  fair as Garcia was duped into providing an artistic performance that was used in a way she never could have foreseen; however, I do agree with the leading experts in copyright law to the understanding that a ruling such as this where an actor does have a copyright interest with nothing so much as a guide to when the interest can be restrained is opening the gates to a flood of litigation especially with the 9th Circuit having jurisdiction over the Hollywood industry. An appeal can be expected to be well on the way on behalf of Google to reverse the decision.

Special thanks to Katrina Nicha for drafting this guest post!

Do actors’ have a copyrightable interest in film?

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