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Actress has Independent Interest in her Film Performance

Posted By Chris Moores, Apr 16, 2014

Facts:

Garcia v. Google, Inc. involves a dispute over the copyrights contained in a film called “Innocence of Muslims.” Garcia was cast in a minor role in “Desert Warrior,” a film. The producer told Garcia the film would be an adventure film set in ancient Arabia and paid her $500 for her one-scene performance. “Desert Warrior” was never released but the producer reused the footage of Garcia and incorporated it into an anti-Islamic film titled “Innocence of Muslims.” Garcia’s scene was partially dubbed so that she appeared to ask: “Is your Mohammed a child molester?” The film was then uploaded to YouTube. The film gained international attention and criticism. An Egyptian cleric issued a fatwa (a ruling on Islamic law) calling for the killing of everyone involved with the film. At this point, Garcia became aware of the use of her scene in “Innocence of Muslims” and began receiving death threats. Garcia responded by asking that Google remove the video from YouTube by filing 8 takedown notices under the Digital Millennium Copyright Act.

The Court’s Reasoning:

United States District Court for the Central District of California denied Garcia’s request for a preliminary injunction requiring the removal from YouTube of “Innocence of Muslims.” On appeal, a panel for the United States Court of Appeals for the Ninth Circuit reversed, concluding that Garcia established she was likely to succeed on the merits of her claim of infringement because she likely had an independent interest in the performance.

Garcia satisfied the originality requirement for copyright protection.

An actor’s fixed performance is copyrightable if it shows a minimal degree of creativity. The Ninth Circuit Court of Appeals found that even though the producer wrote the script, provided direction and dubbed over some of her dialogue, Garcia input body language, facial expressions and interactions with other actors in the scene to satisfy the originality requirement for copyright protection.

Producer did not transfer the rights to Garcia’s performance through the work for hire doctrine or through a written agreement.

Under the work for hire doctrine, the rights to Garcia’s performance could have vested in the producer if Garcia was the producer’s employee or if she was an independent contractor who transferred her interests in writing. See 17 U.S.C. §§ 101, 201(b). Garcia could not be considered a conventional employee because she worked only 3 days and received no traditional employment benefits. There was also no written agreement transferring Garcia’s interest in the performance to the producer.

The producer had an implied license to use the footage, which he exceeded.

The panel recognized that a license to use may be implied from conduct and arises where an actor creates a work, intending that the producer copy and distribute that work. This did not qualify as a defense for the producer here because the film differed radically from anything Garcia could have imagined based on the information she was provided when she filmed the footage. The producer lied to Garcia in order to secure her participation and this alone was also likely enough to void any agreement the producer had with Garcia. Thus, the panel found that the producer’s “inclusion of Garcia’s performance in ‘Innocence of Muslims’ exceeded the scope of the implied license and was an unauthorized, infringing use.”

Garcia suffered and was likely to continue to suffer irreparable harm if the injunction was not granted.

A preliminary injunction implies an urgent need for action, and by delaying legal action, a Plaintiff demonstrates a lack of urgency. The harm complained of must be real and immediate. There must also be a sufficient causal connection between the infringement of her copyright and the harm. The panel found that Garcia took legal action as soon as there was urgency (when the film received critical attention and she began receiving death threats). There was also sufficient causal relationship between the infringement of her copyright (her performance in “Innocence of Muslims”) and the irreparable harm complained of (the death threats). The panel held that removing the film from YouTube would distance Garcia from the film’s anti-Islamic message and spare her from future death threats. The court gave great weight to the fact that the harm complained of was the possibility of death or serious bodily harm. They decided to err on the side of Garcia’s physical safety by granting the injunction.

Conclusion:

The panel found that because of the above reasons, Garcia demonstrated a likelihood of success on her claim that “Innocence of Muslims” infringes her copyright.

The panel’s opinion can be found here.

Chris Moores is a member of the King Hall class of 2016 with interests in trademark, copyright and contract law. He is also the KHIPLA Blog Chair for the 2014-2015 academic school year. This summer he will be working at California Lawyers for the Arts.

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