A recent U.S. case raises some interesting copyright issues concerning the rights of actors who appear in a film.
The Facts
The plaintiff, an aspiring actress, answered a casting call for a low-budget amateur film. The working title of the film was “Desert Warrior” which was to be an adventure film set in ancient Arabia. The writer and producer cast the plaintiff in a minor role. She was given four pages of the script in which her character appeared and paid approximately $500 for three and a half days of filming. The producer did not obtain any formal assignment of copyright or other applicable consent or waivers from the plaintiff.
The “Desert Warrior” never materialized and instead, the plaintiff’s scene was used in an anti-Islamic film titled the “Innocence of Muslims.” The plaintiff first saw the “Innocence of Muslims” after it was uploaded to YouTube.com. She discovered that her performance had been partially dubbed over so that she appeared to be asking whether the Prophet Mohammed was a sexual deviant.
After the film aired on Egyptian television, there were protests that generated worldwide news coverage. An Egyptian cleric issued a fatwa, calling for the killing of everyone involved with the film and the plaintiff soon began receiving death threats. She responded by taking a number of security precautions and asking that Google remove the video from YouTube.
The Takedown
The plaintiff filed a series of takedown notices under the Digital Millennium Copyright Act. When Google resisted the plaintiff applied for a temporary restraining order seeking removal of the film from YouTube, claiming that the posting of the video infringed her copyright in her performance.
The District Court
The District Court refused to grant the order because the plaintiff failed to show that the requested preliminary relief would prevent any alleged harm and was unlikely to succeed on the merits because she had granted the producer an implied license to use her performance in the film.
The Appeal
The plaintiff appealed to the United States Court Of Appeals for the Ninth Circuit. The majority of the court found that the plaintiff could assert a copyright interest only in the portion of “Innocence of Muslims” that represented her individual creativity, but even if her contribution was relatively minor, it was not de minimis. This was sufficient for purpose of seeking preliminary relief.
The Court found that the plaintiff granted the producer an implied license to use her contribution to the film but the license was not unlimited. The plaintiff was told she would be acting in an adventure film set in ancient Arabia. The “Innocence of Muslims” differs so radically from anything the plaintiff could have imagined when she was cast that it could not possibly be authorized by any implied license she granted to the producer.
Finally, the Court found that the plaintiff had shown irreparable harm and if there was any doubt about it, it was best to error on the “side of life”.
The Canadian Position
It is interesting to consider the facts of this case and how a similar case in Canada might be resolved. There is no equivalent of the Digital Millennium Copyright Act in the sense of there being a takedown procedure. In Canada takedowns are only possible if the website operator makes provision for takedowns in the terms of use of the site.
The plaintiff’s rights under the Canadian Copyright Act as an author are not clear. However, it can be argued that the plaintiff’s contribution to the scene resulted in her being an author of the dramatic work subsisting in her contribution to the scene.
To the extent that the plaintiff could be categorized as author, she would be entitled to moral rights. Under the Copyright Act an author’s right to the integrity of a work is infringed only if the work is, to the prejudice of the owner or the reputation of the author, distorted or otherwise modified or used in association with a cause. This right is substantially broader than similar rights available to an author in the United States.
Comment
The decision of the Ninth Circuit in this case has attracted a significant amount of criticism in the U.S. A similar result is possible in Canada but not certain. However, there is considerable merit in erring on the “side of life”.
John McKeown
Goldman Sloan Nash & Haber LLP
480 University Avenue, Suite 1600
Toronto, Ontario M5G 1V2
Direct Line: (416) 597-3371
Fax: (416) 597-3370
Email: mckeown@gsnh.com
These comments are of a general nature and not intended to provide legal advice as individual situations will differ and should be discussed with a lawyer.