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Amici side with Actor in en banc Ninth Circuit Review

By Alix Claps posted 12-17-2014 08:09 PM

  

Amici side with Actor in en banc Ninth Circuit Review

 

            The Ninth Circuit Court of Appeals will review en banc the decision of Ninth Circuit Chief Judge Alex Kozinski filed earlier this year.   Now, however, the actress at the center of the case has some amici support.  The case, although officially captioned Garcia v. Google, is more commonly known as the “Innocence of Muslims” case.  In February, a majority of the three-Judge panel of the Ninth Circuit concluded that Garcia “is likely to succeed on her copyright claim, that she faces irreparable harm absent an injunction and that the balance of equities and the public interest favor her position.” Garcia v. Google, 743 F.3d., 1258, 1269 (9th Cir. 2014). 

            Actress Cindy Lee Garcia brought suit because her performance, purportedly for a film called “Desert Warrior,” was inserted into an anti-Islamic film titled “Innocence of Muslims,” and her performance was partially dubbed over, making her dialogue offensive to many.  It was then uploaded to YouTube.  She received death threats, and after her takedown notices under the Digital Millenium Copyright Act (17 U.S.C. § 512) were resisted by Google, who owns YouTube, she brought suit asserting a copyright in her performance in the film.  The District Court for the Central District of California found for Google, and the Ninth Circuit reversed, which brings the case to the pending en banc review.

            On December 8, 2014, Amici, led by the Screen Actors Guild–American Federation of Television and Radio Artist (SAG-AFTRA), and including Actors’ Equity Association (AEA), American Federation of Musicians of the United States and Canada (AFM), and organizations from Canada, the United Kingdom, Australia, New Zealand, and South Africa, filed a brief supporting the idea that a performer has a copyright interest in her own performance.  This brief stands in contrast to the ten that have been filed on behalf of Google and YouTube so far.

            This brief freely admits that it would be a rare situation in which an actor would be able to hold a copyright separate from the copyright in the whole motion picture, no doubt hoping to ease the fears of those who argue that the impact on the industry would be profound and harmful.   Relying on 17 U.S.C. § 102(a), amici argue that “[a]n actor’s performance can also be considered a pantomime or a dramatic work, protectable separate from the medium in which it is fixed.”  In this specific case, where the original dialogue was removed from the scene and overdubbed by a different performer, Garcia’s work qualified as a pantomime, a specifically categorized work within 17 U.S.C. § 102.

            Amici also rebut the argument that the actor is merely a reciter of words written for and movements directed to them.  Invoking the character of Batman, amici point out that each actor who has played Batman has created a very different version of the character, even while in head-to-toe costume.  They also discuss Tatiana Maslany’s contributions to “Orphan Black,” where she plays upwards of eight different identical clones, each with a different accent, speech pattern, physicality/kinesthetics, and way of thinking.   They cap their argument with the observation that “[i]f an actor did not add sufficient originality to a performance, which actor a studio hired simply would not matter.”

            Amici also invoke the classic performances of Clint Eastwood as Dirty Harry, Peter Finch as Howard Beale in “Network,” and Robert Duvall in “Apocalypse Now” as examples of how a brief moment from a larger performance can itself be iconic and possibly qualify for protection, assuming it is not work made for hire or the copyright question is not otherwise dispensed with contractually.

            Other arguments in the brief include precedent from the Ninth Circuit and the State of California supporting amici’s contention, and rebuttals of the idea that granting copyright protection to an actor’s performance under the rare circumstances in which it would qualify would not “upset the Hollywood Apple Cart” nor unduly burden distributors.  The full brief can be found at http://cdn.ca9.uscourts.gov/datastore/general/2014/12/09/12-57302%20Amicus%20by%20SAG.pdf.  Argument is set for this week.

 

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