When Copyright Smothers Free Expression

By creating a new right in actors' performances, this case may make any number of works unavailable at the behest of actors.

Innocence of Muslims, the low rent, 14-minute propaganda video released in 2012, has sparked a new controversy. This time it's not protests in the streets of Benghazi, but shock and indignation among copyright experts.

The Ninth Circuit Court of Appeals has ruled that one of the video's actresses has a copyright interest in it and can therefore force YouTube to take it down. If this ruling is allowed to stand and it becomes precedent, get ready to see dozens, if not hundreds, or lawsuits by actors claiming they own copyright in their performances, separate and apart from the copyright in the movie itself.

For those who don't remember, Innocence of Muslims is a video written and produced by one Nakoula Basseley Nakoula, an Egyptian Copt living in the U.S. who had previously been convicted of bank fraud. The video purports to be a trailer for a feature film, and it portrays the prophet Mohammed as a bloodthirsty fraud who is also gay and a child molester.

That portrayal angered muslims around the world and led to a series of protests on September 11, 2012. The reaction began in Cairo where protesters scaled the walls of the U.S. embassy, tore down the American flag, and replace it with an Islamic flag. Ultimately the protests spread all around the world, and the video was cited by the Obama Administration as a motive for the attack on the U.S. mission in Benghazi that killed Ambassador Christopher Stevens.

Shortly after the video's release, an Egyptian cleric called for the death of those involved in its making, saying, "I issue a fatwa and call on the Muslim youth in America and Europe to do this duty, which is to kill the director, the producer and the actors and everyone who helped and promoted the film."

One of those actors was Cindy Lee Garcia. She appeared in the video for all of three seconds, and her performance was partially dubbed over so that she appeared to be asking, "Is your Mohammed a child molester?" Like others in the production, Garcia had been cast under false pretenses. She had been told by Nakoula that she was acting in an adventure film titled, Desert Warrior.

Garcia understandably wanted the video taken down from YouTube immediately, so she filed a series of "notice-and-takedown" requests claiming a violation of her copyright. Google, which owns YouTube, refused to take down the video pointing out that as an actress she does not hold the copyright. Garcia sued, and the court agreed with Google that no injunction should issue, but the Ninth Circuit reversed in a strange opinion by the otherwise-reasonable Judge Alex Kozinski.

There are many problems with the ruling in Garcia v. Google, not the least of which is the question of what exactly is the work over which Garcia is supposed to have copyright. Clearly she doesn't have copyright over the entire video, and Kozinski says as much. Instead, he found that she has a "copyright interest in her performance." The problem with that reasoning is that copyright only extends to "original works of authorship fixed in any tangible medium of expression[.]" It's not reasonable to see a fleeting performance, such as Garcia's three seconds of acting, as a separate work. Her performance is also not "fixed," as the Copyright Acts requires, in a form separate from the larger work.

Indeed, the decision has drawn strong criticism from a wide array of legal academics, activists, and commentators who view Kozinski's decision as results-driven. There's no denying that Garcia is a sympathetic plaintiff, but as the adage goes, bad cases make bad laws. If this decision is allowed to stand, it will encourage actors everywhere to begin to assert separate copyrights over their performances in films in which they have appeared. And this gets to what's really wrong with the decision.

Apart from considering the technical legal problems with the decision, we should also ask ourselves, does the ruling further the purpose of copyright? After all, copyright exists not primarily for the benefit of creators, but for the benefit of the public. It serves to create an incentive for creators to produce and make available works that the public can enjoy. The exclusive rights creators enjoy under copyright are a means to an end, not an end in themselves.

So how does Garcia v. Google measure up at furthering copyright's purpose? Not very well. In his opinion Kozinski bent backwards to find a copyright interest in order to allow Garcia to remove the work from public availability. Indeed, by creating a new right in actors' performances, Kozinski may be unleashing a wave of lawsuits that will result not only in no new benefit to the public, but it may make any number of works unavailable at the behest of actors.

There is zero evidence that the public lacks access to films because actors do not enjoy a separate copyright in their performance sufficient to motivate them to create. This means that the only practical effect of such a new right will be to sow confusion and draw extortionist suits against existing film owners. This may well be the first time the Motion Picture Association of America will oppose copyright expansion, and they will be right.