Actress’ Lawsuit So Far Suggests an Actor’s Performance Is Not Copyrightable

by John Aquino on 02/12/13

Some expressed the hope that a recent court ruling concerning an actress’ performance in a notorious film would answer the question, can an actor’s performance be protected by U.S. copyright. The answer the court provided is not a final one as far as the case is concerned, but it reaffirmed what has been the standard answer, which is no.

This blog has discussed other related questions, such as, can fictional characters be protected by copyright, what is a work-for-hire where copyright is concerned, and what is joint copyright?

The standard approach to the issue of copyright for an actor’s performance has been that a performance is only part of a dramatic work and that a film’s copyright covers the total work and all of its elements. Performers in their roles are typically regarded as doing work-for-hire, and the copyright is consequently owned by the filmmakers, the actors’ employer.

This is an oversimplification. It was generally true when films were produced and owned by Hollywood studios and actors, costume designers, art directors, and all connected with the film were literally employed by the studio or were employees for other studios who were loaned out for a particular film.

Today, many if not most films are produced independently and then purchased by or just distributed by a studio, which can sometimes raise the issue of who the employers is. It is also possible that an element of the film such as the musical score could continue to be owned by the composer who only licenses it to the filmmakers. But even in these arrangements, rights are transferred or are licensed by contract, and the basic work-for-hire concept largely remains operative.

It could even be argued that Congress implicitly decided that actors’ performances should not be protected by copyright. For the first 75 years of the 20^th century, U.S. performers who asserted performance rights claims did so under the common law copyright of particular states. One example is Waring v. WDAS Broadcasting, 127 Pa. 433, 437 (1937), which involved the radio broadcasting of the recordings of Fred Waring’s orchestra that were marked “not licensed for radio broadcast.” At the time, recordings were not protected by U.S. copyright law. The Pennsylvania state court held that Waring, as the “creator” of the work, had a property right in the litigation.  

But with the 1976 revision of U.S. copyright law, Congress eliminated common law copyright and so removed these decisions as precedents. Congress could have added actors’ performances under works that are entitled to copyright protection, as it did for recordings, but it did not.

A persistent fear expressed in many law review articles during this period was that protection for an actor’s performance in a particular role would adversely affect the ability of other actors to perform the same role. H. Silverberg asked in his article, “Televising Old Films—Some New Legal Questions About Performers’ and Proprietors’ Rights,” 38 Va. Law Review 615 (1952), “Could John Barrymore have claimed a common law property right in his memorable interpretation of Hamlet?”

Then in 2012, the controversial film Innocence of Muslims had its 13-minute trailer, which portrayed the Muslim religious leader Mohammed as being a fool and a sexual deviant, posted on YouTube. The trailer was then blocked in Egypt, Libya, India, Indonesia, Malaysia, and Saudi Arabia. The film created unrest in the Middle East and was mistakenly credited by the Obama Administration as sparking protests that led to an attack on the U.S. embassy in Benghazi on Sept. 12, 2012 that killed four Americans, including the U.S. ambassador to Libya. YouTube refused to remove the trailer in the United States.

Actress Cindy Lee Garcia claimed that the producer of the film misrepresented the project to her, overdubbed her dialogue without her knowledge with lines claiming Mohammed was a child molester, and as a result, she began receiving death threats.

Garcia asked YouTube to take the film down from its site in accordance with the Digital Millennium Copyright Act, but YouTube refused because Garcia did not hold the copyright for the film.

In her federal litigation filed in the U.S. District Court for the Central District of California, Garcia v. Nakoula, C.D. Cal., No. CV 12-08318-MWF, Garcia argued that she owned a copyright in her own performance. She claimed that her performance was not a work for hire because the producer had not required her to sign the usual release of her rights.

Garcia cited the landmark work-for-hire case, Community for Creative Non-Violence v. Reid, 490 U.S. 730 (1989) and argued that the majority of the 13 factors that the Supreme Court instructed courts to use in determining whether a work was a work-for-hire weighed in support of her claim that she was an independent contractor and not an employee.

In ruling on Garcia’s motion for a preliminary injunction that would require YouTube to take the film down, Judge Michael Fitzgerald held that Garcia had not established a likelihood of success on the merits, stating that the nature of her copyright interest was unclear and that it was also not clear that the defendants would be liable for infringement.

Fitzgerald quoted from Aalmnhammed v. Lee, 202 F.3d 1227 (9^th Cir. 2000) in ruling that this film too “is a copyrightable work” and it is “undisputed that the movie was intended by everyone involved with it to be a unitary whole.”

Noting that Garcia argued that she owned the copyright in her own performance, Fitzgerald wrote, “Even if this copyright interest were cognizable and proven, by operation of law, Garcia necessarily (if impliedly) would have granted the Film’s author a license to distribute her performance as a contribution incorporated into the indivisible whole of the Film.”

The court’s ruling was only to deny Garcia’s motion for a preliminary injunction. Garcia appealed the ruling to the U.S. Court of Appeals for the Ninth Circuit in January 2013, which could overturn the district court’s ruling. If that does not happen, the district court would still have to rule on the merits of Garcia’s claim. But its statements in its preliminary injunction ruling suggest what its decision on the merits might be.

The Garcia case, so far, conforms with the standard approach and suggests that an actor’s performance is still not protected by copyright. The court added that, even if it was, and noted Garcia had not proved that it was protected by copyright as she needed to, performance in a film constituted a license to distribute it.

For me, the situation recalls the case of DeCosta v. Viacom, 981 F.2d 602, 605 (1992), which involved Victor DeCosta, a rodeo performer, who, dressed all in black, told the story of a hired gun named Paladin who had a business card that read, “Have Gun Will Travel.” In 1957, CBS-TV broadcast a show titled “Have Gun Will Travel” about a hired gun named Paladin who was dressed all in black. DeCosta sued for various claims but the nature of his rodeo performance appeared to fall outside of copyright and trademark law. After 30 years of different trials, a federal court ended the case, stating, “Mr. DeCosta’s original legal problem lay in his inability to bring his case within a particular set of protective rules.”

This could be the problem Garcia is experiencing.

Copyright 2013 by John T. Aquino. This article is not intended as a legal opinion and is intended for educational purposes only.