Who is the author of an actor's recorded performance? This question rarely arises in practice, because motion picture producers insist that all creative participants sign work-made-for-hire agreements. When this detail is overlooked, however, all bets are off, and attempts to assert authorship rights can land the participants in court. As Garcia v. Google, Inc., 2014 U.S. App. LEXIS 3694 (9th Cir. Feb. 26, 2014) [an enhanced version of this opinion is available to lexis.com subscribers] illustrates, the law remains surprisingly unsettled on the authorship rights of performers. I. Background Plaintiff Cindy Lee Garcia agreed to perform in "Desert Warrior," an adventure film set in ancient Arabia, written and produced by Mark Basseley Youssef. She received approximately $500 for several days' work. However, Youssef never made "Desert Warrior." Instead, he incorporated Garcia's recorded performance into an anti-Islamic film called "Innocence of Muslims," in which her performance was partially dubbed so that she appeared to be asking "Is your Mohammed a child molester?" When the film was released in Egypt, a Muslim cleric issued a fatwa, calling for the death of everyone involved in the film, and Garcia received death threats. When the film appeared on YouTube, Garcia sent Google several takedown notices pursuant to 17 U.S.C. § 512(c)(3) [an annotated version of this statute is available to lexis.com subscribers] . When Google refused to remove the film, Garcia applied for a temporary restraining order on the ground of copyright infringement, asserting that she owned the copyright in her recorded performance. Treating this as a motion for a preliminary injunction, the district court denied the motion, holding that Garcia was unlikely to succeed on the merits because she had granted Youssef an implied license to incorporate her performance in the film. Garcia v. Nakoula, CV 12-08315-MWF (VBKx) (C.D.Cal. Nov. 30, 2012). Google appealed, and a split panel of the Ninth Circuit reversed. Garcia v. Google, Inc., 2014 U.S. App. LEXIS 3694 (9th Cir. Feb 26, 2014). In his majority opinion, Judge Kozinski held that Garcia was not a joint author of the film, because (1) she argued that she never intended her performance to be a part of a joint work, and (2) under Ninth Circuit law, she did not qualify as a joint author. Id. at *2. The majority noted, however, that even if Garcia was not a joint author of "Innocence of Muslims," this did not foreclose the possibility that she could be the sole author of her recorded performance, and thus its copyright owner. Id. When Youssef, the author of the screenplay, recorded Garcia performing his script, he implicitly gave her permission to create a derivative work – her recorded performance. Id. at *3. Although the majority did not believe that Garcia owned a "copyright interest in the entire scene" in which she appeared, they held that she could "assert a copyright interest . . . in the portion of 'Innocence of Muslims' that represents her individual creativity." Id.
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