SAG-AFTRA and other performers unions are weighing in on a lawsuit in which actress Cindy Lee Garcia’s is seeking to force YouTube to remove the inflammatory “Innocence of Muslims” video that sparked protests in the Muslim world.
After YouTube refused to remove the “Innocence of Muslims” video, Garcia sought an injunction against the site, claiming that she had a copyright interest in her performance, even though she had only a minor role in the movie.
In an amicus brief filed with the 9th Circuit Court of Appeals, the actors unions argue that court precedent has recognized that a performance copyrightable, and that in certain “rare circumstances,” actors can claim a separate copyright to their work. But they are not rendering a judgment on whether Garcia herself has a copyright claim to her brief appearance in the video, other than to note examples where even short performances can be sufficiently original to warrant copyright protection.
Google and other Internet companies have warned that should the 9th Circuit accept Garcia’s rationale, it’ll cripple distributors if they have to obtain clearances from even minor characters in a project.
But in their brief, SAG-AFTRA and other organizations argue that actors “are valued for their performance and the originality they bring for their respective roles. The actors imbue the lines with original expression that conveys emotion and brings the character to life.”
SAG-AFTRA is joined in the brief by the American Federation of Musicians of the United States and Canada, the International Federation of Actors and Actors Equity Assn., along with other organizations.
They cited a 2007 case in which the 9th Circuit used the Pink Panther films as examples of original expression, citing Peter Sellers’ performances along with Henry Mancini’s score and Blake Edwards’ direction. They argue that such a reference “places the actor’s performance at the same level as the composer’s musical work.”
They say that the fears expressed by Google are overwrought because so many performers are hired in an employer-employee relationship, in which an actors work is “made for hire” and they assign a copyright interest to the producer. That employer-employee relationship is recognized in SAG-AFTRA collective bargaining agreements. In other cases, the performer would be a joint author, with each author able to exploit a work non-exclusively.
The actors organizations, however, do not take a position as to whether Garcia’s performance “is properly considered her separately owned copyright or a joint work.” They do note that Garcia was not a SAG-AFTRA member.
The 9th Circuit Court of Appeals has scheduled an en banc hearing on Dec. 15.
Garcia said that she received death threats as the video sparked protests. She said that she was told that she was performing in a movie called “Desert Warrior,” yet the movie’s writer and producer, Mark Basseley Youssef, instead turned it into “Innocence of Muslims,” with her voice dubbed over so that she appeared to be asking, “Is your Mohammed a child molester?”
In a 2-1 ruling, a panel of the 9th Circuit sided with Garcia, with the majority disturbed by the idea that Garcia had no control over how her performance was being used. But last month, the 9th Circuit agreed to rehear the case in an en banc hearing.