While the answer to the question posed by the title of this post may seem simple at first blush, a recent decision by the Ninth Circuit Court of Appeals has created significant uncertainty and created the spectre of possible Supreme Court intervention to answer this important copyright law question.
The factual scenario that gives rise to this question is where an actor is not the “author” of an entire film for copyright purposes but rather only plays a small role in the film. Under such circumstances, does the actor nevertheless own a protected copyright interest in his or her own individual performance such that the performance can be licensed or the actor can control the use of his or her performance (such as through the editing or distribution process)?
In Garcia v. Google, Inc., a divided three-judge panel of the Ninth Circuit Court of Appeals touched off a firestorm of copyright controversy when it suggested that there could be multiple copyright interests in a fixed work like a film. The majority in the Garcia case explained its decision by stating that “nothing in the Copyright Act suggests that a copyright in a creative contribution to a work simply disappears because the contributor doesn’t qualify as a joint author of the entire work.” The majority ultimately ruled that “[a]n actor’s performance, when fixed, is copyrightable if it evinces some minimal degree of creativity” such that an actor may “assert a copyright interest only in the portion of [the work] that represents her individual creativity.”
Perhaps the facts of Garcia explain the decision to some extent. In Garcia, the plaintiff performed a small role in what she believing was going to be a feature-length film entitled “Desert Warrior.” However, after filming was complete, the footage was re-cut into a short film that was an anti-Islamic propaganda piece and was distributed via the Internet over the You Tube service. Subsequent to the release of the film, the plaintiff received death threats and became the subject of a fatwa issued by a Muslim cleric.
The plaintiff claimed ownership in the copyright to her performance and, since she never authorized the broadcasting of her performance on You Tube, the plaintiff demanded that Google (the owner of You Tube) take down the film from You Tube pursuant to the requirements of the Digital Millennium Copyright Act. Litigation ensued when Google refused to do so and, to date, the Ninth Circuit has sided with the plaintiff.
The Ninth Circuit decision in Garcia is at odds with a recent decision of a trial court in the Southern District of New York in the case of 16 Casa Duse LLC v. Merkin, where the court held that an actor does not own a copyright interest in his or her individual performance, stating that where “two or more parties each independently make independently copyrightable contributions to a work . . . the dominant author is the sole author.”
The 16 Casa Duse case is on appeal to the Second Circuit Court of Appeals and the Ninth Circuit granted en banc review and heard argument in the Garcia case on December 15, 2014. Assuming the Second Circuit affirms the trial court in 16 Casa Duse and the full panel of the Ninth Circuit affirms the Garcia decision (which may not happen given the en banc review), we will have a split among two of the most prominent courts of appeal in the geographic areas where the large majority of films are made in the United States. In such case, Supreme Court review would seem inevitable. Stay tuned . . . .