A recent U.S. case raises some interesting copyright issues
concerning the rights of actors who appear in a film.
The plaintiff, an aspiring actress, answered a casting call for
a low-budget amateur film. The working title of the film was
"Desert Warrior" which was to be an adventure film set in
ancient Arabia. The writer and producer cast the plaintiff in a
minor role. She was given four pages of the script in which her
character appeared and paid approximately $500 for three and a half
days of filming. The producer did not obtain any formal assignment
of copyright or other applicable consent or waivers from the
The "Desert Warrior" never materialized and instead,
the plaintiff's scene was used in an anti-Islamic film titled
the "Innocence of Muslims." The plaintiff first saw
the "Innocence of Muslims" after it was uploaded to
YouTube.com. She discovered that her performance had been partially
dubbed over so that she appeared to be asking whether the Prophet
Mohammed was a sexual deviant.
After the film aired on Egyptian television, there were protests
that generated worldwide news coverage. An Egyptian cleric issued a
fatwa, calling for the killing of everyone involved with the film
and the plaintiff soon began receiving death threats. She responded
by taking a number of security precautions and asking that Google
remove the video from YouTube.
The plaintiff filed a series of takedown notices under the
Digital Millennium Copyright Act. When Google resisted the
plaintiff applied for a temporary restraining order seeking removal
of the film from YouTube, claiming that the posting of the video
infringed her copyright in her performance.
The District Court
The District Court refused to grant the order because the
plaintiff failed to show that the requested preliminary relief
would prevent any alleged harm and was unlikely to succeed on the
merits because she had granted the producer an implied license to
use her performance in the film.
The plaintiff appealed to the United States Court Of Appeals for
the Ninth Circuit. The majority of the court found that the
plaintiff could assert a copyright interest only in the portion of
"Innocence of Muslims" that represented her individual
creativity, but even if her contribution was relatively minor, it
was not de minimis. This was sufficient for purpose of seeking
The Court found that the plaintiff granted the producer an
implied license to use her contribution to the film but the license
was not unlimited. The plaintiff was told she would be acting in an
adventure film set in ancient Arabia. The "Innocence of
Muslims" differs so radically from anything the plaintiff
could have imagined when she was cast that it could not possibly be
authorized by any implied license she granted to the producer.
Finally, the Court found that the plaintiff had shown
irreparable harm and if there was any doubt about it, it was best
to error on the "side of life".
The Canadian Position
It is interesting to consider the facts of this case and how a
similar case in Canada might be resolved. There is no equivalent of
the Digital Millennium Copyright Act in the sense of there being a
takedown procedure. In Canada takedowns are only possible if
the website operator makes provision for takedowns in the terms of
use of the site.
The plaintiff's rights under the Canadian Copyright Act as
an author are not clear. However, it can be argued that the
plaintiff's contribution to the scene resulted in her being an
author of the dramatic work subsisting in her contribution to the
To the extent that the plaintiff could be categorized as author,
she would be entitled to moral rights. Under the Copyright
Act an author's right to the integrity of a work is infringed
only if the work is, to the prejudice of the owner or the
reputation of the author, distorted or otherwise modified or used
in association with a cause. This right is substantially
broader than similar rights available to an author in the United
The decision of the Ninth Circuit in this case has attracted a
significant amount of criticism in the U.S. A similar result
is possible in Canada but not certain. However, there is
considerable merit in erring on the "side of life".
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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