A recent decision of a full panel of judges of the U.S. 9th Circuit has found that an actor could not claim a copyright interest in his or her performance in a film.
In our newsletter of April 2, 2014 we dealt with the decision in the First Appeal in this case.
The Facts
In substance, a rogue movie producer transformed the plaintiff’s five second acting performance for a film entitled “Dessert Warrior” into part of a blasphemous video proclamation against the prophet Mohammed entitled the “Innocence of Muslims”. The film was credited as a source of violence in the Middle East and the plaintiff received death threats. A 2013 New York Times investigation found that the film partially contributed to the September 2012 outburst of violence of Benghazi in which a number of Americans including the U.S. Ambassador were killed.
The First Appeal
A three judge panel of the United States Court of Appeals for the 9th Circuit, found that the plaintiff could assert a copyright interest in the film that represented her individual creativity and granted an injunction restraining further publication of the film.
The Second Appeal
A full panel of eleven judges of the court heard an appeal from the panel of three judges. Numerous third parties filed briefs, including copyright and internet law scholars, content, Internet service and technology providers, actors, media organizations and non-profit groups.
The Majority
Majority allowed the appeal and removed the injunction. On the copyright point, the majority was strongly influenced and relied on the position that had been taken by the U.S. Copyright Office. The office said that its long standing practices did not allow a copyright claim by an individual actor or actress in his or her performance contained within a motion picture. For copyright registration purposes a motion picture is a single integrated work.
It was observed that the plaintiff’s theory of copyright law would result in a legal morass of splitting a movie into many different “works” even in the absence of an independent fixation. It would as Google claimed make Swiss cheese of copyrights.
The majority decided that the plaintiff had not satisfied the obligation to show irreparable harm. They said that her claim to personal harm was not connected to her commercial interest as a performer and instead focused on the personal pain caused by her association with the film.
The majority also said that the injunction that had been issued censored and suppressed a politically significant film based upon a dubious and unprecedented theory of copyright. In doing so the panel deprived the public of the ability to view first hand and judge for themselves, a film at the center of an international uproar contrary to the First Amendment of the United States.
The Concurring Opinion
A judge who concurred with the majority delivered a separate set of reasons. He indicated that what the majority had said about copyright law might be wrong, but concluded that the plaintiff had failed to prove that a “causal connection” between the irreparable injury she faces and the conduct she hopes to enjoin. In other words, she had to show that removing the film from YouTube would likely eliminate or at least materially reduce the risk of death posed by the issuance of the fatwa.
The sad but unfortunate truth was that the threat posed to the plaintiff by the issuance of the fatwa would remain whether the “Innocence of Muslims” is available on YouTube or not. The plaintiff was subject to the threats because of her role in making the film not because the film is available on YouTube. In addition, the film will undoubtedly remain accessible on the Internet for all who wish to see it even if YouTube no longer hosts it.
The Dissent
The judge who wrote the majority opinion of the original panel decision dissented. He observed that the majority said that the plaintiff’s performance was not copyrightable at all but at other times seemed to say that the plaintiff did not do enough to gain copyright in her performance. Either way, the majority was wrong and made a total mess of copyright law in California and the Hollywood circuit.
Comment
It seems unfortunate that none of the lawyers involved or the judges who heard the case were able to fashion an appropriate remedy to solve the impasse faced by the plaintiff. The plaintiff is left with increased exposure and no effective remedy.
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.