On May 18, 2015, the Court of Appeals for the Ninth Circuit sitting en banc reversed a ruling by an earlier Ninth Circuit panel concerning an actress's alleged independent copyright claim to her performance in a copyrighted film (To prevent link rot, I am hosting both of these documents on Mega.co.nz).
The plaintiff, Cindy Lee Garcia, is an actress who "was bamboozled when a movie producer transformed her five-second acting performance into part of a blasphemous video proclamation against the Prophet Mohammed". See en banc ruling at 7. After receiving death threats, Garcia filed numerous takedown notices with Google under the Digital Millennium Copyright Act. See Panel Order at 5. Google refused to takedown the film. See id. at 6. Garcia then sued Google to remove the movie by claiming, in part, that she had "a copyright interest in her fleeting performance". See en banc at 8. The district court denied the injunction and found that Garcia did not establish that she was likely to succeed on the merits of her copyright claim. See id. at 8.
A divided Ninth Circuit panel reversed the district court stating that Garcia's copyright claim was "fairly debatably" and ordered the removal of the motion picture with her performance. See Panel Order at 10. In doing so, the panel found that Garcia could make a copyrightable contribution to a production and yet not be a joint author of the whole work. See id. at 8. The panel expressly avoided the issue of whether Garcia had to personally fix her work in a tangible medium. See id. at 7, fn 4. Because of the panel decision, the Ninth Circuit granted an en banc hearing to reconsider that decision.
First, the en banc Court found that Garcia was not an author of the motion picture. See en banc ruling at 16. An author is the person or persons who fixes the original work in a tangible medium of expression. 17 U.S.C. § 101. Garcia was neither an author of the script nor the motion picture, which is a derivative work of the script.
Second, the Court found that a motion picture is a single unitary work. ruling at 17-18. The Court relied upon the Copyright Office's expert opinion that an individual actor or actress cannot register their performance separate from the motion picture. See id. The court held, that to find otherwise would shatter copyright protection for a motion picture, or any large production, into many little pieces making the logistics of protecting such a production a nearly impossible. See id. at 20.
Third, Garcia never "fixed" her acting performance in a tangible medium. See id. at22. Copyright law requires that a work be fixed "by or under the authority of the author". 17 U.S.C. § 101. However, in this case, any fixation occurred by the movie producer or the producer's crew.
Thus, the en banc Court held that Garcia did not have an independent copyright claim to her performance in the motion picture.
This en banc ruling restores the balance between actors and producers. It clearly states that copyright ownership in a motion picture, or any large production, will reside with the producers and that individual actors will not be able to interject copyright claims to muddy the ownership of the motion picture.
updated on 5/26, 10/17 (to identify location documents are being hosted)