https://archive.org/details/LegalGeekEp05
When the 14-minute Youtube film "Innocence of Muslims" insulted the religion and caused a firestorm in the extremist parts of Islam society a few months ago, many people and even the White House called for the hateful film to be pulled from public channels. However, one of the most interesting pleas came from Cindy Garcia, who appears in the film.
Garcia has claimed in lawsuits that the filmmaker committed fraud on her because she was not apprised of what type of film her performance would be used in, including having no knowledge it had anything to do with muslims at all. One of her more creative bases for suing the filmmaker was that she has a copyright in her performance that has been infringed by the spreading of the film without her authorization on Youtube.
Outlandish legal claims are nothing new, but the Nine Circuit Court of Appeals bought this claim hook, line, and sinker in a ruling earlier this week. Straight-shooting Judge Kozinski wrote the opinion, and he deemed that Garcia provided just enough of her own creative spark to own a limited copyright in her individual creative acting performance, not the scenes at large she appears in or the film as a whole.
But Kozinski has to contort copyright law to get there. Garcia's contribution to the film is basically a performance of the underlying creative work, which is the screenplay or the film itself. Such a performance of someone else's creative work is not typically deemed copyrightable by itself, yet that is what Judge Kozinski concludes. He also must stretch the definition of harm done to Garcia by the infringement and the limits of the implied license given to the filmmaker, while also avoiding the application of the Work Made For Hire doctrine to reach this conclusion. It's clear when Kozinski calls this situation extraordinarily rare that he is making the ruling work to fit the result he thinks should happen. However, a true maxim from law school rings true in this decision: bad facts make for bad law.
Sure, the filmmaker of Innocence of Muslims is not acting in Garcia's best interests or even nicely, but this ruling in Hollywood's backyard could cause future angry actors to be able to force their edits on producers and directors of movies when they don't agree with the final cut. This could hold up or even pull movies from theaters, which hurts the industry as well as the public.
Expect Youtube's owner Google and the MPAA to team up to contest this ruling, and those strange bedfellows will hopefully turn this around at a full Ninth Circuit ruling or in the Supreme Court. If not, controversial movies like Borat and Bruno will potentially not be possible anymore, as angry prior participants may use IP rights to hold other creatives hostage.
Bottom line: Copyright law does not and should not work this way, as filmmakers should and do have the rights in a movie. Let's hope that holds up in court.
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