Ninth Circuit Rules Acting Performance Independently Copyrightable and Not Part of Joint Work

Copyright SymbolIn what appears to be an appellate case of first impression, the Ninth Circuit has issued a remarkable decision in which the majority holds that an individual actor’s performance of a minor role in a motion picture is independently copyrightable, is not part of a work of joint authorship as embodied in the motion picture, and therefore the performance or distribution of the motion picture without the actor’s permission infringes the actor’s copyright, in the absence of a license.

This case involved the now-infamous Innocence of Muslims film, which offended a large segment of the Islamic community and led to riots and protests overseas.  According to the facts as set forth in the decision, the Plaintiff, Cindy Lee Garcia, was hired by an amateur film-maker to play a minor role in what he described as an action film titled Desert Warrior.  She was only given the four pages of the script in which her character appeared, and worked three and a half days on the set.  That footage was eventually used in an anti-Islamic film titled Innocence of Muslims, in which at least some of Ms. Garcia’s lines were dubbed over so that she appeared to ask whether Mohammed was a child molester.  When the film was aired on Egyptian television and uploaded onto YouTube, protests ensued and fatwas were issued, including one calling for the death of Ms. Garcia.

You might well ask what this all has to do with copyright law.  The answer lies in the DMCA. [Read more…]

Are “Digital Actors” Protected By Copyright?

A company called Digicon Media, LLC has issued a press release, claiming that it has obtained a copyright registration for the “digital persona” of a “virtual Marilyn Monroe.”  Digicon appears to be claiming that the registration broadly covers the exclusive right to a digital representation of Marilyn Monroe’s persona or performance.

It seems to me that Digicon is grossly overstating its rights (at least its rights under copyright law).  Last time I checked, neither “digital actors” nor “digital personas” were classes of works protected by copyright.  Indeed, the registration cited by Digicon is a VA registration, making it likely that the registration covers a particular digital animation as an audiovisual work.  If so, the registered copyright (as opposed to any potential right of publicity issues) would not prevent others from creating their own digital animation featuring a virtual Marilyn Monroe, so long as the second animation was not substantially similar to Digicon’s animation (i.e., different clothing, movement, dialogue, etc.).

There are some other interesting points about the registration.  First, the registration claimant is not Digicon, but rather is an individual by the name of Peter F. Paul.  Mr. Paul is an interesting character in his own right, with a colorful personal background that includes jail time and several unsuccessful bids to wrest the rights to several Marvel Comics characters away from Marvel and Stan Lee.  Also of interest, the registration record notes that Copyright Office correspondence is part of the record.  I would imagine that the issues raised in that correspondence are very interesting, indeed!