Copyright law in the United States may have undergone several landmark revisions since its inception, but the foundational idea of recognizing and offering protection for an author’s original creation has never wavered. In fact, the very idea is ingrained in the United States Constitution. Nonetheless, copyright legal doctrine has evolved throughout the millennia and today has several very distinct requirements that must be satisfied in order to protect an author’s contribution.
Protection is offered for original works of authorship fixed in a tangible means of expression. To elaborate on this simple phrase, works deserving of copyright protection must fit into one of a select set of categories of works, must be the original creation of the author utilizing at least a modicum of creativity, and must be fixed in some sort of medium from which they can be perceived for longer than a transitory period. Based on this definition, it has long been established that the person with creative control over a work, one who makes the creative decisions in how a work is designed, made, and presented is regarded as the author who receives copyright protection in that work. Conflicts may sometimes arise as to authorship, primarily in contexts where several people work jointly on a single work or contribute disparately to a compilation. In a recent decision by the United States Court of Appeals for the Ninth Circuit, however, a conflict over authorship arose in previously uncharted territory, an actor’s performance.
In Garcia v. Google, Civil Docket No. 12-57302, an actress named Cindy Garcia successfully argued, contrary to long-standing tradition and understanding, that the copyright in an actor’s performance was owned by the individual actor. Though no court has yet issued a decision specifically concerning an actor’s copyright in his individual performance, it has been thus far understood that for many reasons, that should not be the case. First, the majority of actors are hired to perform, which under the work-made-for-hire doctrine means their employers automatically own the copyright in the actor’s work. Second, it is typically not the individual actor who fixes the performance in a tangible medium of expression, a requirement for copyright. Someone else handles the recording, filming, or fixation of the work for the public to enjoy. Third, an actor’s performance is often scripted and directed, meaning the actor is not typically the one making the creative choices as to how a scene is performed, shot, or shown to others. Nevertheless, the Ninth Circuit court was apparently influenced by Garcia’s argument that her performance was original enough and had enough of her creative contribution in it to justify an individual copyright.
Garcia’s case concerns a short, scripted performance the actress did for an adventure film role. After she had filmed the performance, it turned out that her performance was not used in any such film in fact, but instead was released under a different moniker as part of an anti-Islamic film in which she appeared to drag the Prophet Muhammad’s name through the mud. The video found its way on YouTube and resulted in violent protests and death threats to Garcia personally.
Because Garcia’s take down notices to Google under Section 512 of the Digital Millennium Copyright Act went unheeded, she filed suit against Google, claiming that Google was liable for copyright infringement by allowing this video to remain on the Internet and refusing to take it down from YouTube. The court rejected Google’s free speech argument and granted Garcia an injunction against Google, forcing the takedown of the video. Many scholars and players in the film industry have spoken out against this decision, arguing that the decision will prompt many actors to seek individual copyright protection in their work and create a multitude of conflicts with filmmakers over those rights. Some of the proponents of the decision maintain that an actor does bring enough creativity and originality to a scripted performance to warrant individual copyright protection. Interestingly, however, the Copyright Office has so far rejected Garcia’s copyright application for her performance, coming down on the side of tradition and long-standing practice to grant the copyright to the filmmaker, which goes along with the dissenters’ arguments that it is the filmmaker who makes the real creative decisions and formulates the final embodiment of the work.
At first blush, the decision may appear revolutionary. For supporters, allowing an actor to retain the copyright in his individual performance may seem accurate under the law and more than that, fair. For dissenters, the decision is contrary to what people have understood the copyright law to be for at least the past forty-five years. Either way, however, it seems likely the easy fix for studios will simply involves being vigilant about requiring actors to sign releases and turn over any copyright in their performances in the employment contract.