We’ve all had the feeling from time to time that something “isn’t what I signed up for.” But while one unsuspecting actress may have felt exactly that way, copyright law couldn’t fix it.
Cindy Garcia believed she was cast to fill a small role in an action adventure movie. Instead, Garcia was blindsided when her performance was used in a blasphemous video proclamation against the Prophet Mohammed, called “Innocence of Muslims.” Garcia’s lines were dubbed over without her knowledge and replaced with crude remarks regarding the Prophet Mohammed. She received death threats for her small role in the video.
The Egyptian Muslim community issued a fatwa, urging the killing of any person who participated in the film. Even though Garcia only appeared on screen for five seconds, she still received death threats.
Garcia sued Google and its subsidiary YouTube, seeking an injunction to have the video taken down. The U.S. Court of Appeals for the Ninth Circuit initially ruled that Garcia had a copyright interest in her acting performance, allowing her to control the video’s distribution rights.
But the Ninth Circuit, after hearing the case a second time, ruled Garcia’s performance in the video was not a protectable original and creative work granting her a copyright interest. The court said granting Garcia a copyright interest in the video would make “Swiss cheese of copyrights.” The court ruled that to be granted a copyright interest, the claimant must make the video or direct in the creation of the video.
While what happened to Garcia is despicable, the ruling makes sense. The Ninth Circuit’s decision reaffirms the old saying “the whole is greater than the sum of its parts.” If any actor could claim a copyright interest in or control the distribution of any video in which they appeared, few would probably make it to screen—at least few that are more than a one-man show.
Most likely the contract between Garcia and the filmmaker allowed the filmmaker to do whatever it wanted with the video they shot of her—otherwise a simpler claim would have been breach of contract or misappropriation of likeness. Most actors aren’t going to have the bargaining power to demand approval before release of a film, meaning there may be little assurance for hungry actors that the same thing won’t happen to them.
Special thanks to my Partner, Stacy Cole, and Graydon's Summer Associates, Ben Greiner and Ean Harris, for doing the legwork on these articles.