In a controversial opinion released in May 2015, the United States Court of Appeals for the Ninth Circuit addressed an unusual, and highly publicized, copyright question: Can an actor claim a copyright in his or her individual dramatic performance, distinct from the film at large? (1) In Garcia v. Google, Inc., the court initially held that an actor, like the plaintiff, Garcia, could possibly claim a copyright interest for her individual performance in a film, so long as that contribution met the threshold requirements of copyrightability laid out in the Copyright Act. (2) After an uproar from third-party content distributors, film industry players, and a variety of others, the court revisited the case en banc. (3) In an amended opinion, the court did a full one-eighty, holding instead that Ms. Garcia had no copyright claim in her performance and suggesting that actors may never obtain a copyright of this sort. (4)
The Garcia litigation has ignited extensive debate in both professional and academic communities regarding the possibility of granting copyrights in actors' individual performances. (5) On one side, commentators argue that recognizing such rights will lead to a "splintering" problem in the film industry, as anyone who contributes something minimally creative to a film could claim a copyright interest, leading to a title searching problem for downstream users, (6) imposing practical burdens on producers of creative works, (7) and violating the Constitutional mandate that copyright law "promote ... [p]rogress." (8) On the other side, however, parties assert that these fears are exaggerated, and so long as an acting performance meets the minimal requirements for copyrightability set forth in the Copyright Act, (9) it should receive protection. (10) The fact that the Ninth Circuit, arguably most equipped to evaluate claims relating to motion pictures, (11) came out on each side of this argument at some point during the Garcia litigation (12) illustrates the complicated nature of this question.
In its en banc opinion, the court noted that Garcia's claim was inconceivable under American copyright law, but intimated that she might have had a viable claim had her case arisen in a foreign jurisdiction. (13) According to the court, Garcia's claim was more attuned to a system that recognizes either moral rights (14) or a right to be forgotten, (15) which would better enable Garcia to "have her connection to the film forgotten and stripped from YouTube." (16) American copyright law has historically rejected any notion that authors are entitled to prevent the use of their works as a matter of natural right (17)--as asserted under moral rights and the right to be forgotten (18)--instead justifying copyright law as a tool for regulating economic efficiency so as to generate public benefits. (19) As the court explained, moral rights are only recognized in America in an extremely limited category of visual arts, (20) from which motion pictures are explicitly excluded. (21) According to the court, American copyright law was not the proper source of Garcia's relief. (22)
Despite the United States' apparent aversion to moral rights, the court's allusion to foreign policies in its opinion invites a deeper look into foreign copyright policy to craft a potential solution for the problem of individual performance copyrights. Rather than analyzing the arguments in the Ninth Circuit's en banc opinion, this Note will explore the issues raised by Garcia in light of international intellectual property law. As mentioned, the Ninth Circuit made clear that an actor does not have a distinct copyright interest in his or her individual performance within a film under current American copyright law. (23) This Note will use comparative methods to consider whether an actor should have such an interest based on America's international obligations under various intellectual property treaties, the treatment of acting performances in parallel foreign jurisdictions, and the current framework of American copyright law. Despite agreeing that, on the particular facts of Garcia, the Ninth Circuit reached the correct conclusion, this Note asserts that Garcia has identified a gap in American intellectual property law. In accordance with the fundamental principles underlying intellectual property law and global trends, this Note will argue that this problem should be addressed by incorporating into the American intellectual property scheme an enumerated set of performers' rights and limited moral rights.
Part I of this Note will provide the background of the Garcia case, outlining the relevant portions of the Ninth Circuit's initial opinion, as well as its subsequent en banc opinion. In particular, it will confront the court's assertion that the interest claimed by Garcia may be more readily recognized in certain foreign jurisdictions. (24)
Continuing from this proposition, Part II will address the availability of copyright protection for acting performances in audiovisual works abroad. For this comparison, this Note will first look at French copyright law, widely accepted as the most author-friendly of Western intellectual property regimes, (25) acknowledging the natural law philosophies that form the bedrock of this law. (26) Next, this Part will turn to copyright law in the United Kingdom--considered a middle ground between continental European and American regimes (27)--to investigate its treatment of performance copyrights, paying special attention to the limited, yet critical, role moral rights play in this system. (28) Ultimately, this Note will assert that such a limited recognition of intellectual property rights for performers and partial moral rights regime could reasonably be incorporated into American law to provide actors with legal support. Finally, this Part will turn to the United States' obligations under international law to assert that American law should be amended so as to recognize the possibility of actors obtaining copyrights in their individual performances within audiovisual works. Despite foundational differences in intellectual property philosophy between the United States and European countries, outlined in Part II, the United States' obligations under the Beijing Treaty on Audiovisual Performances ("the Beijing Treaty") and Berne Convention for the Protection of Literary and Artistic Works ("the Berne Convention" or "Berne") require that domestic intellectual property laws recognize rights of this sort. This Part will reference the U.K's efforts to comply with these same treaties as evidence that acting performance copyrights and moral rights are not discordant with the traditional common law view of copyright as an economic tool to encourage public dissemination of creative works. (29)
Part III of this Note will frame the issue of acting performance copyrights in light of the 1976 Copyright Act, which currently governs copyright law in the United States. After summarizing the minimum requirements for copyright protection, this Part will elaborate on three types of works contemplated by the Act as valid recipients of copyright protection: choreographic works, pantomimes, and sound recordings. Comparing an actor's performance to these legitimate performance-related rights, this Part will assess the ability of American copyright law to absorb acting performances into its existing structure. It will also describe the various limiting doctrines of copyright law to suggest that significant safeguards already exist to prevent acting performance copyrights from turning the entertainment industry on its head.
Ultimately, this Note will conclude that by slightly modifying its current laws in a manner similar to the U.K., America could provide protection to actors like Garcia, bringing its laws into better harmony with Europe to the benefit of authors and the public at large.
GARCIA V. GOOGLE
Cindy Lee Garcia's troubles began when she answered a casting call for an action-adventure film called Desert Warrior and was selected for a cameo role. (30) Her character only appeared in a few pages of the entire script, and she had two speaking lines. (31) Garcia was present for three-and-a-half days of filming, which were overseen by the film's writer and director, Mark Basseley Youssef. (32) In performing her lines, Garcia was instructed to "seem concerned." (33) She was paid a total sum of $500 for her involvement in the film. (34)
Nearly a year after the initial casting call, Youssef completed a film using Garcia's performance. (35) However, the film was nothing like the action-adventure film for which Garcia believed she was acting. (36) Instead, Youssef incorporated Garcia's performance into an anti-Islamic propaganda film entitled Innocence of Muslims, which portrayed the Prophet Mohammed as "a murderer, pedophile, and homosexual." (37) Garcia's speaking performance was dubbed over, so that her character instead was attributed with the line, "Is your Mohammed a child molester?" (38) Garcia did not consent to her performance being used in this manner--or in any manner beyond the action adventure film--and was unaware of Youssefs ulterior film plans until she saw the trailer on YouTube. (39)
The YouTube trailer of Innocence of Muslims sparked outrage and was linked to "numerous violent protests" across the Middle East. (40) Garcia received several death threats (41) and promptly contacted Google, Inc., the owner of YouTube, asserting that the film was hate speech and violated her privacy and publicity rights under California law. (42) She also sent Google five takedown notices pursuant to the Digital Millennium Copyright Act, "claiming that YouTube's broadcast of Innocence of Muslims infringed her copyright in her 'audio-visual dramatic performance.'" (43)
When Garcia's case reached the district court, she had refined her claims to include allegations of copyright infringement. (44) It is crucial...