Garcia v. Google

 

Can an actor claim copyrights for her performance?

 

In a recent ninth circuit ruling, the court held that yes, an actor can have an independent copyright ownership for her performance. Plaintiff was cast in a minor role in an adventure film with the working title “Desert Warrior.” The film never materialized.  But plaintiff’s scene was used, in an anti-Islamic film titled “Innocence of Muslims.” The film was uploaded to YouTube.com and her brief performance was dubbed over.  She sued Youtube for removal of the film and claimed that her copyrights were infringed.

 

In order for copyrights to exist, the work must meet two requirements: 1) it must have a modicum of creativity and 2) it must be fixed in a tangible medium of expression. 

 

Citing Stanislavski and Sanford Meisner, the Court noted that an actor’s contribution to a performances is not merely a reflection of the written page (Otherwise, “every shmuck . . . is an actor because everyone . . . knows how to read.” Sanford Meisner & Dennis Longwell, Sanford Meisner on Acting 178 (1987).), but is also of sufficient originality to establish authorship. The court found that an actor’s performance is an “original work” and that it is embodied in a tangible medium, the film.  Regardless of the fact that someone else made the recording, she had a copyright interest “in her performance.”

 

The court also held that she had an independent copyright ownership. The court reasoned that if she was a co-author of the film, she couldn’t stop other co-authors from exploiting it. Finally, although she hadn’t signed a contract, the court found that her oral or implied consent to use of her “copyright” was invalid due to the misrepresentations made to her. The court also held that she wasn’t an employee, hence preventing labeling of her performance from being a work made for hire.

Article by Dorisa Shahmirzai, Esq.

Founding Entertainment Attorney at IP Law Click

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