On February 26, 2014, actress Cindy Lee Garcia, who held a small role in the controversial movie trailer for Innocence of Muslims, successfully appealed her federal lawsuit against Google when the Internet giant failed to yield to Garcia’s YouTube takedown notices.
Critics, quick to call the Garcia v. Google ruling “boneheaded,” have noted that the ruling may allow anyone even remotely connected with the creative production of a movie to assert a copyright interest in the work. Like its recent New York counterpart, the Garcia decision begs the question of filmmakers: how fast and loose are you willing to play with your cast and crew’s copyright assignment agreements?
The filmmaker “wrote the dialogue [Garcia] spoke, managed all aspects of the production and later dubbed over a portion of her scene.” Although the Innocence of Muslims’ movie trailer was completed, the final movie was never made. Due to the timing of the overdubbed version’s release and its anti-Islamic rhetoric, some consider the trailer to be a catalyst for the terrorist attacks on the American embassy in Benghazi.
After filing 8 separate DMCA takedown notices to no avail, Garcia sued Google, YouTube and the film’s writer and producer, Nakoula Basseley Nakoula, in a Los Angeles federal court. However, despite the fact that Garcia never agreed to assign her creative contribution in the film to Nakoula, the trial court found that she should not be considered an author of the film and probably gave the producer an implied license to any copyright she might possess.
While Garcia wasn’t cast for a major role, and despite the fact that Nakoula dubbed over much of her work, the appeals court found that “an actor’s fixed performance can be copyrightable if it evinces some creativity.” Referencing famous silent film star Buster Keaton, the court opined that many minor acting roles, even those not featuring the actor’s voice, aren’t de minimis, non-copyrightable contributions. Because Garcia never signed over her rights to the film, the court held, she had a copyright interest in her creative work, and Google (through YouTube) infringed upon her intellectual property rights.
The Garcia decisions brings to mind a case decided this fall in a New York City federal court, which involved a very similar issue but reached a very different conclusion. In 16 Casa Duse v. Merkin, a movie director who never signed an agreement with the film production company was deemed not to be a rightsholder in the film because (i) the other parties didn’t intend to be a co-author with him and (ii) he was not the “dominant” author.
The Garcia and Merkin cases demonstrate just how gray the copyright law can be for the casts and crew of motion pictures. As a precaution, producers should be especially vigilant and ensure all parties assisting with the production of the film assign all appropriate rights to the production company.
It’s said that “there are no small parts, only small actors.” Well-drafted copyright assignments could save your film from unnecessary legal battles later with the cast and crew, regardless of the stature of the contributor or nature of the contribution. Since the law continues to evolve on this subject, be safe—get it clearly in writing.