recent decision of a full panel of judges of the U.S. 9th
Circuit has found that an actor could not claim a copyright
interest in his or her performance in a film.
In our newsletter of April 2, 2014 we dealt with the decision in
the First Appeal in this case.
Click here for the article.
In substance, a rogue movie producer transformed the
plaintiff's five second acting performance for a film entitled
"Dessert Warrior" into part of a blasphemous video
proclamation against the prophet Mohammed entitled the
"Innocence of Muslims". The film was credited as a source
of violence in the Middle East and the plaintiff received death
threats. A 2013 New York Times investigation found that the film
partially contributed to the September 2012 outburst of violence of
Benghazi in which a number of Americans including the U.S.
Ambassador were killed.
The First Appeal
A three judge panel of the United States Court of Appeals for
the 9th Circuit, found that the plaintiff could assert a copyright
interest in the film that represented her individual creativity and
granted an injunction restraining further publication of the
The Second Appeal
A full panel of eleven judges of the court heard an appeal from
the panel of three judges. Numerous third parties filed briefs,
including copyright and internet law scholars, content, Internet
service and technology providers, actors, media organizations and
Majority allowed the appeal and removed the injunction. On the
copyright point, the majority was strongly influenced and relied on
the position that had been taken by the U.S. Copyright Office. The
office said that its long standing practices did not allow a
copyright claim by an individual actor or actress in his or her
performance contained within a motion picture. For copyright
registration purposes a motion picture is a single integrated
It was observed that the plaintiff's theory of copyright law
would result in a legal morass of splitting a movie into many
different "works" even in the absence of an independent
fixation. It would as Google claimed make Swiss cheese of
The majority decided that the plaintiff had not satisfied the
obligation to show irreparable harm. They said that her claim to
personal harm was not connected to her commercial interest as a
performer and instead focused on the personal pain caused by her
association with the film.
The majority also said that the injunction that had been issued
censored and suppressed a politically significant film based upon a
dubious and unprecedented theory of copyright. In doing so the
panel deprived the public of the ability to view first hand and
judge for themselves, a film at the center of an international
uproar contrary to the First Amendment of the United States.
The Concurring Opinion
A judge who concurred with the majority delivered a separate set
of reasons. He indicated that what the majority had said about
copyright law might be wrong, but concluded that the plaintiff had
failed to prove that a "causal connection" between the
irreparable injury she faces and the conduct she hopes to enjoin.
In other words, she had to show that removing the film from YouTube
would likely eliminate or at least materially reduce the risk of
death posed by the issuance of the fatwa.
The sad but unfortunate truth was that the threat posed to the
plaintiff by the issuance of the fatwa would remain whether the
"Innocence of Muslims" is available on YouTube or not.
The plaintiff was subject to the threats because of her role in
making the film not because the film is available on YouTube. In
addition, the film will undoubtedly remain accessible on the
Internet for all who wish to see it even if YouTube no longer hosts
The judge who wrote the majority opinion of the original panel
decision dissented. He observed that the majority said that the
plaintiff's performance was not copyrightable at all but at
other times seemed to say that the plaintiff did not do enough to
gain copyright in her performance. Either way, the majority was
wrong and made a total mess of copyright law in California and the
It seems unfortunate that none of the lawyers involved or the
judges who heard the case were able to fashion an appropriate
remedy to solve the impasse faced by the plaintiff. The plaintiff
is left with increased exposure and no effective remedy.
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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A recent Saskatchewan Court of Queen's Bench decision allowed a court-appointed receiver to sell and transfer intellectual property rights free and clear of encumbrances, finding that a license to use improvements of an invention was a contractual interest and not a property interest.
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