Just one copyright per movie, 9th Circuit court rules

You may remember when Cindy Lee Garcia, an actress whose likeness appeared in the trailer for the anti-Muslim hit piece "Innocence of Muslims," sued and won on a claim that the filmmaker altered her voice and put her scene into a different movie and thus violated her copyright to her creative performance. There hadn't previously been a recognized copyright to a five-second clip within a film, but Chief Judge Alex Kosinski wrote for a three-judge panel last year that there should be, if the performance evinces "some minimal degree of creativity ... no matter how crude, humble or obvious it might be….That is true whether the actor speaks, is dubbed over or, like Buster Keaton, performs without any words at all." In this case the filmmaker tricked Garcia into appearing in a different movie than the one she signed up for, and the judges ordered the trailer off YouTube.

Now a larger panel of the U.S. 9th Circuit Court of Appeals says Kozinski was wrong, and it sided with filmmakers and Google who argued that each individual actor or costume designer can't assert copyright over their contribution to a movie. The copyright applies only to the overall work and belongs to the filmmaker, says the decision written by Circuit Judge M. Margaret McKeown.

It's an interesting case. From Jon Healey at the LA Times opinion section:

Though the ruling isn't likely to shake up Hollywood, it was a clear victory for filmmakers over the actors' unions….

Citing the 9th Circuit's ruling in Aalmuhammed vs. Lee in 2000 (a copyright dispute over Spike Lee's movie "Malcolm X"), the court's majority held that a movie was a single copyrightable work, albeit one that might have more than one author. "Garcia’s theory of copyright law would result in the legal morass we warned against in Aalmuhammed — splintering a movie into many different 'works,' even in the absence of an independent fixation. Simply put, as Google claimed, it 'make[s] Swiss cheese of copyrights.' "

Preserving ("fixing") a work in a physical or digital medium is essential to claiming copyrighted authorship, the court held. In this case, Garcia didn't do that -- Youssef and his crew did, and in the case of her altered role in the trailer, they did so without her authorization.

Wrote McKeown: "Garcia’s theory can be likened to 'copyright cherry picking,' which would enable any contributor from a costume designer down to an extra or best boy to claim copyright in random bits and pieces of a unitary motion picture without satisfying the requirements of the Copyright Act."

Actors' and musicians' unions argued in briefs that a short performance was independently copyrightable, provided it was sufficiently original. But the court ruled, per the Times, that a single copyright covers all parts of a film, "held by the filmmaker individually or jointly with others whose contributions were significant enough to make them joint authors." Kozinski dissented.

Photo of Garcia: Michael Fagans / Bakersfield Californian