Like a bad 1980s movie, the most infamous copyright decicion of the year has now spawned a sequel.  The Ninth Circuit Court of Appeals has been considering since early March whether to rehear en banc its decision in favor of Cindy Lee Garcia concerning her performance in the movie Innocence of Muslims.  Plaintiff Cindy Lee Garcia, one of the actresses in the video, claimed that she had no idea what the movie was to turn out to be when she performed her scenes, and that the Islamophobic audio had been dubbed over whatever she actually said when filming.  She then sued, arguing that her performance was an independently copyrightable work, such that the producers needed her permission to distribute and reproduce it.  The complaint was universally disregarded by copyright experts when it was filed.  This reaction was so nearly unanimous because Garcia’s performance (which, it was later learned, had been denied registration by the Copyright Office) seemed clearly to be a work for hire, or a joint work—if Garcia’s performance even met the other requirements for copyright. 

On appeal from the District Court’s denial of an injunction, the Ninth Circuit Panel framed the question not as a joint work, but as whether “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,” and if so “whether it’s sufficiently creative to be protectable.”  The Court of Appeals expressed concern over whether if an actor’s performance is “fixed” (which of course it is in every single video and motion picture), “it evinces some minimal degree of creativity . . . ‘no matter how crude, humble or obvious’ it might be.” 

The Ninth Circuit’s application of copyright law astounded nearly everyone ( “Of course, by hiring Garcia, giving her the script and turning a camera on her, [Mark] Youssef implicitly granted her a license to perform his screenplay.”).  But that should have been the point: Garcia was clearly hired for her performance (alone). 

The implications of the decision are far-reaching: anyone captured onscreen, unless the studio or director had a written work for hire agreement, seemed a class of plaintiffs waiting to be born.  An unknown judge on the Ninth Circuit swiftly requested briefing on whether the full court should re-hear the case en banc.  The parties did so, but the request has been under advisement for nearly six months.

The continuing uncertainty has now borne fruit: a second actor has filed suit claiming a copyright in his Innocence of Muslims performance.  Gaylord Flynn has sued Youssef, Google, and dozens of others.  The theory of the complaint is the same, as are Flynn’s attorneys.

The lawsuit is just another reminder that the Ninth Circuit needs to step in and turn things around.