Ninth Circuit Rules En Banc That Actors Do Not Have Protectable Interests In Their Individual Film Performances

On January 7, 2015, we posted about the case of Garcia v. Google, Inc., which was a case then-pending in the Ninth Circuit Court of Appeals that raised the issue whether an actor has a protectable interest in his or her individual film performance.  (See Here for prior post: https://affinitylaw.wordpress.com/2015/01/07/do-actors-have-protectable-copyright-interests-in-their-own-individual-film-performances/).  While the case arose in the unique context of an actor’s performance in what she believed was a regular film being re-cut into an anti-Islamic propaganda film, the case nevertheless had important implications in the copyright field and for the entertainment and film industries.

On May 18, 2015, an en banc panel of the Ninth Circuit issued its decision in the Garcia case and (as expected by most copyright lawyers), the Ninth Circuit held that actors do not enjoy a copyright interest in their individual performances – primarily because they do not fix their “acting performance in a tangible medium, as required by 17 U.S.C. § 101.” Thus, the actor cannot be the author or owner of the work since the fixation is done by the film crew, not the performers.

The Ninth Circuit also rejected the arguments that actors in a film enjoy privacy right protections, any “right to be forgotten,” or any protection from emotional distress arising from copyright law.

The Ninth Circuit en banc decision in Garcia can be found here: http://cdn.ca9.uscourts.gov/datastore/opinions/2015/05/18/12-57302.pdf

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