A Knowing Glance… Worthy of Copyright?

10/22/2014 / Jim Quinn

The 9th Circuit Court of Appeals, which includes California, is famous for being vigilant when it comes to Silicon Valley and Hollywood. The Court is often in the vanguard about issues involving intellectual property rights. That’s why the February 2014, decision in Garcia v. Google has shaken the movie industry to its core.

In the Garcia case, a young Muslim woman was duped into performing in a movie that was represented as being an action film. In fact, upon its release, the movie had morphed into a condemnation of Islam. Google made the production available for viewing on YouTube; and the actress, fearing for her safety, demanded that Google remove the film. She based her demand on the assertion that she was the owner of the copyright in her performance, a novel claim that hadn’t been accorded any weight by the courts. However, in a very surprising ruling, the 9th Circuit held that the performance did indeed rise to the level of being an original work; and that Ms. Garcia, as the “author” of her performance, owned the copyright in her scenes. This right gave her the power to compel removal of the film from YouTube because she had never granted anyone a copyright license in her screen presence. 

Hollywood howled. Did this mean that extras who appear in productions have rights in their facial expressions and mumblings? How about a performer who ad-libs lines in a movie? Is that actor the owner of rights in the overall movie? In July 2014, the 9th Circuit revisited the case; but the justices were largely unmoved. They made adjustments to a few aspects of the decision; but reaffirmed their position with respect to Ms. Garcia’s copyright ownership.

Historically, rights in audiovisual works have been owned by the producers. They generally acquire these rights through releases, assignments, and licenses from the people who make contributions to a production. While the actors will always sign talent and performance releases that apply to publicity and character rights related to a production, these documents don’t generally address copyright issues. This is because the longstanding rule has been that actors are simply following the script and don’t make any independent copyrightable contributions to a movie. The Garcia decision changes all that.

This ruling can’t be limited to big Hollywood productions. Any time a person appears in an online video presentation, a promotional interview, an infomercial, an internal educational or training video, or any other form of audiovisual production, it should be assumed that this “actor” might own the copyright in their “performance.” In order for the producer to ensure that it will be the owner of all aspects of the production, and to avoid any future limits on distribution or use, conventional talent releases will need to be bolstered. In addition to granting the normal consents, anyone who appears in a production should now be required to assign all their copyright interests to the producer. 

The “knowing glance” of a performer would now seem to come with enforcement rights. Businesses would be wise to acquire these rights before investing time and resources into a production that might later be “stuck in the can” because an actor had a change of heart.