I have studied Copyright law in France at undergraduate level, in the UK during my postgrad LLM at QMUL and at the moment I am reading an online course on Copyright with Harvard University. I have spent the last few years looking at the intersection of privacy and copyright law. I have advocated against the recent anti piracy regulations From HADOPI- The digital Economy Bill, SOPA and et all. I have been repeating this is all too confusing. We need to adapt the law before creating new sanctions, no one today can pretend to really grasp the logic of copyright law. The decision by the 9th Circuit came out just when we were studying the question of Authorship. It is absolutely amazing to read this case where the actress Cindy Garcia is said to own a copyright on a movie where she played a small contribution which has been used without her consent in a second movie, the ‘Innocence of Muslims’. The justification being that she has been receiving death threats. What could have been resolved under contract law, had she had signed a contract, or Moral Rights, had it been in Civil Law litigation.
So the 9th Circuit has given an injunction to Google YouTube to take down this video. The Judge Kozinski has even asked Google/YouTube an injunction not to tell the world that the video had been ordered censored by a court for at least a week!
Since, Google has quickly filed an “emergency motion for a stay”.
The number of dissent opinions on this case is remarkable. I invite you to look at some of them collected on my Pearltrees. This is a crucial question as it can led to a deluge of litigation if each and any actor, performing in a movie claimed co-authorship on the work. As much as I know co-authorship is not proportional under US law. So any actor would have right on every each whole work?!!!!! It’s a mess and I fear for every law student expected to have understood. here the Hollywood Reporter reports few dissent scholars.
Check out the pearltree Authorship.
Here is an abstract of the reasoning:
An actor’s performance, when fixed, is copyrightable if it 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. Cf. 17 U.S.C. § 102(a)(4) (noting “pantomimes and choreographic works” are eligible for copyright protection). It’s clear that Garcia’s performance meets these minimum requirements.
Aalmuhammed isn’t to the contrary because it does not, as the dissent would have it, “articulate general principles of authorship.” Dissent 25. Aalmuhammed only discusses what is required for a contributor to a work to assert joint ownership over the entire work: “We hold that authorship is required under the statutory definition of a joint work, and that authorship is not the same thing as making a valuable and copyrightable contribution.” … Aalmuhammed plainly contemplates that an individual can make a “copyrightable contribution” and yet not become a joint author of the whole work. Id. For example, the author of a single poem does not necessarily become a co-author of the anthology in which the poem is published. It makes sense to impose heightened requirements on those who would leverage their individual contribution into ownership of a greater whole, but those requirements don’t apply to the copyrightability of all creative works, for which only a “minimal creative spark [is] required by the Copyright Act and the Constitution.”
This doesn’t mean that Garcia owns a copyright interest in the entire scene: She can claim copyright in her own contribution but not in “preexisting material” such as the words or actions spelled out in the underlying script. 17 U.S.C. § 103(b);…. Garcia may assert a copyright interest only in the portion of “Innocence of Muslims” that represents her individual creativity, but even if her contribution is relatively minor, it isn’t de minimis…. We need not and do not decide whether every actor has a copyright in his performance within a movie. It suffices for now to hold that, while the matter is fairly debatable, Garcia is likely to prevail.