We had already reported how Cindy Lee Garcia had persuaded a split panel of the U.S. 9th Circuit Court of Appeals that she had rights to her performance in the 13-minute trailer for "Innocence of Muslims" - the "crude piece of anti-Islamic agit-prop": Chief Judge Alex Kozinski held that Garcia held a copyright in her performance despite appearing in only five seconds of the trailer, writing none of her own lines and even having part of her dialogue overdubbed by someone else. The dissenting judge in the case, N. Randy Smith, accused the panel's majority of writing new law saying "We have never held that an actress' performance could be copyrightable" but the majority held that "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". The video was taken down from YouTube - under protest. Now the Hollywood Reporter, amongst others, has revealed some updates in the case:- Almost immediately after the ruling, Google filed an emergency motion to stay the order pending a rehearing en banc saying "Under the panel's rule, minor players in everything from Hollywood films to home videos can wrest control of those works from their creators, and service providers like YouTube will lack the ability to determine who has a valid copyright claim". Judge Kozinski denied the motion, but in a rare move "that illustrates the tensions this decision has wrought" another 9th Circuit judge made a sua sponte request to have the Circuit reconsider the stay.
- Facebook, Twitter, IAC and Pinterest have all requested permission to file an amicus brief supporting Google's position.
- and media groups and publishers including The New York Times, Washington Post and the Los Angeles Times are also weighed in to support Google.
- It also transpired that Garcia has been trying to register as the sole author of a "dramatic performance fixed in tangible medium of expression" at the U.S. Copyright Office. In December, 2012, the chief of the performing arts division at the Copyright Office indicated that the registration would be refused because a "motion picture is a single integrated work."; On March 6, the Director of Registration Policy and Practices wrote a letter to Garcia's lawyer firmly refusing registration and noting how the Copyright Office's "longstanding practices do not allow a copyright claim by an individual actor or actress in his or her performance contained within a motion picture.
It seems the sequel is set to open soon!
Thank you for this post! This case is the latest iteration of a deep and long-lived conversation in the U.S. regarding the copyrightability of a performer's "performance." Reporting on the 1976 Copyright Act, Congress stated, "The copyright elements in a sound recording will usually, though not always, involve 'authorship' both on the parts of the performers whose performance is captured and on the part of the record producers . . . " (56). How is a movie different? Yet the Copyright Office does not register copyright claims of an actress in her performance contained within a motion picture. Any thoughts?
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